Cap-Gap Relief for Extension of F1 Status and OPT EAD

 

Introduction: Cap-Gap Relief

cap-gap reliefIn general, if an alien applies for change of status [see article] to H1B, but his or her previously accorded status expires prior to the H1B start date, the alien will be treated as a visa overstay subject to section 222(g) of the Immigration and Nationality Act (INA) [see article] if he or she remains in the United States and his or her status expires.1 Due to the H1B cap and the “misalignment of the academic year with the fiscal year,” this problem is often particularly onerous for F1 students seeking change of status to H1B.2 In recognition of this problem, the Department of Homeland Security (DHS) created a regulatory provision providing H1B “cap-gap” relief under certain circumstances for F1 students who timely file for change of status to H1B with a start date for the beginning of the next fiscal year (October 1). H1B cap-gap relief also extends to employment authorization for change of status applicants engaged in optional practical training (OPT).

The regulations, originally written on April 8, 2008 [see rule: 73 FR 18944], were revised in a new final rule published on March 10, 2016 that took effect on May 10, 2016 [see rule: 81 FR 13039]. In this article, we will use the applicable regulations and agency guidance to examine the rules for H1B cap-gap relief.

Applicable Regulations

The regulations regarding H1B cap-gap relief are found in 8 C.F.R. 214.2(f)(5)(vi).

Under 8 C.F.R. 214.2(f)(5)(vi)(A), an alien maintaining F1 status who applies for change of status to H1B will have his or her duration of stay and any employment authorization granted under 8 C.F.R. 274a.12(c)(3)(i)(B) or (C) (relating to OPT and STEM OPT extensions [see article]) will be automatically extended if the H1B petition is subject to the annual cap under section 214(g)(1)(A) and if the petition:

  1. Has been timely filed; and
  2. Requests an H1B employment start date of October 1 of the following fiscal year.

8 C.F.R. 214.2(f)(5)(vi)(B) states that the automatic extension of duration of stay will automatically terminate if the H1B petition is rejected, denied, revoked, or withdrawn. This applies even if the petition had already been approved for consular processing.

8 C.F.R. 214.2(f)(5)(vi)(C) makes clear that the change of status applicant must not have violated the terms or conditions of his or her nonimmigrant status in order to obtain the automatic extension of stay and employment authorization (cap-gap relief).

8 C.F.R. 214.2(f)(5)(vi)(D) extends the extension of stay to F2 dependent aliens.

Cap-Gap Relief Eligibility

In order to be eligible for automatic cap-gap relief, the student beneficiary of an H1B petition must be properly maintaining F1 status [see article]. This includes students who are engaged in an academic course of study, engaged in an authorized period of post-completion OPT (including a STEM OPT extension (including an additional 7-month period under 8 C.F.R. 216.14) [see section]), and those who are within the 60-day grace period for departure [see USCIS guidance].3

  • Has a timely filed and cap-subject Form I-129 H1B petition filed on his or her behalf during the H1B acceptance period beginning on April 1; and
  • The H1B petition requests an October 1 start date.

It is important to note that cap-gap protection does not apply to cap-exempt H1B petitions [see article]. Accordingly, a cap-exempt employer and F1 student are well advised to plan ahead with an experienced immigration attorney and request an employment start date before the F1 student's duration of stay would end.

Two-Step Process and Proof of Extension

Because cap-gap relief triggers automatically if the regulatory conditions are met, the F1 student does not need to file an application in order to benefit. However, the student may obtain a Form I-20 from his or her DSO which serves as physical proof of employment authorization in the cap-gap period.

Once the I-129 petition is filed on the student's behalf, the student may present his or her DSO with proof that the petition was timely filed and the student is requesting change of status to H1B for October 1 and the DSO will issue a Form I-20 showing an extension until June 1.4

By June 1, USCIS will determine whether the student's I-129 petition is selected for adjudication. If it is not, the student's cap-gap relief will end and he or she will have a 60-day grace period to depart [jump to section]. If the I-129 petition is accepted for adjudication, the student may present his or her DSO with the employer's Form I-797, Notice of Action, with a valid receipt number, indicating that the petition is filed and accepted. The DSO may then provide the student with an updated Form I-20 showing that an extension until October 1.5

Travel

While I-129 petition is pending, F1 students are well advised to not travel during the cap-gap extension period. Doing so would lead to the abandonment of the petition under section 248(a) of the INA. Accordingly, the student would be unable to be readmitted in F1 status.

As described in 81 FR 13102, an F1 student may travel during the cap-gap period and be readmitted in F1 status under the following circumstances:

  1. The student's H1B petition and request for change of status has been approved;
  2. The student seeks readmission before his H1B employment is set to begin (October 1);
  3. The student is otherwise admissible.

It is important to note that a determination for whether the student is admissible in F1 status will be made at the port-of-entry. If the student lacks the proper documentation or has any issues relating to his or her admissibility, the student may be denied readmission in F1 status.

Departure

If the H1B petition is denied, rejected, revoked, or withdrawn, the F1 student will have a 60-day grace period to depart the United States. The grace period begins from the date of the notification of the denial, rejection, revocation, or withdrawal of the petition.

If the F1 student's change of status request is denied due to a status violation, misrepresentation, or fraud, the student will be required to depart immediately with no grace period.6

Cap-Gap and Employment Authorization

The cap-gap regulations also allow for the automatic extension of employment authorization that comes with post-completion OPT or a STEM OPT extension.

In order to have employment authorization extended through the cap-gap period, the F1 student's previous employment authorization must expire April 1 or later.7 If an F1 student is not authorized for employment when he or she obtains cap-gap relief, the student will be eligible to remain in the United States under the regulations but will be ineligible to work until his or her H1B employment start date.

A student who receives an OPT extension under the cap-gap provisions will continue to have to abide by the regulations regarding OPT and/or STEM OPT extensions. In 81 FR 13101, DHS clarified that an F1 student may change employers while working on OPT in the cap-gap extension period so long as he or she does so in accordance with the applicable regulations. In 2012, USCIS asserted in a Q&A that the OPT unemployment limits continue to apply and remain unchanged during the cap-gap extension period.8 The DHS states in 81 FR 13102 that an F1 student may file for a STEM OPT extension during the period if he or she is in a period of OPT so long as the regulatory eligibility requirements are met. However, the DHS notes once the student's status is changed from F1 to H1B, he or she will no longer be eligible to engage in any OPT.

Layoff or Termination after Approved H1B Petition and Change of Status

USCIS has taken the position that if the F1 student's H1B petition and change of status are approved, but he or she is laid off by the employer prior to the employment start date, the F1 student may retrieve any unused OPT if he or she has an unexpired employment authorization document.9 In this case, the student will remain in F1 status and can continue his or her OPT so long as the employment authorization is unexpired. However, it is important for the F1 student to ensure that USCIS receives a withdrawal request from the petitioner so that his or her status is not changed to H1B on October 1. After the withdrawal of the petition, the student must provide his or her DSO with the notice of revocation so that the DSO may request a data fix in SEVIS so that his or her status is not terminated on the H1B effective date. If the USCIS does not receive the withdrawal request prior to the change of status effective date, than the student will no longer be eligible to work with his or her employment authorization.10 In order to become eligible to work again, the student would have to file for reinstatement of F1 status [see article]. The student would be ineligible to work until his or her F1 status is reinstated.11

If the student finds a new H1B job, he or she may continue working while the data fix is pending so long as:

  • The student finds employment appropriate to his or her OPT;
  • The period of OPT is unexpired; and
  • The DSO has requested a data fix in SEVIS.

If the H1B revocation occurs before October 1, the student may continue working past October 1 while the data fix remains pending so long as he or she meets the three conditions listed above.12

If the H1B revocation occurs after the H1B change of status effective date [see article], the student's status will have already been changed to H1B. The alien would have the option of applying for reinstatement of F1 status instead of immediately departing. If the alien intends to seek reinstatement of F1 status, he or she should immediately consult with an experienced immigration attorney for an assessment.

Although an F1 student will typically have a 60-day grace period to depart after the revocation of an H1B petition during the cap-gap period, the student will be required to depart immediately if the revocation was due to fraud, misrepresentation, or a status violation. The student would not be eligible to work on an unexpired employment authorization document.13

Conclusion: Cap-Gap Relief

Cap-gap relief allows students who would otherwise have to depart and apply for an H1B visa from abroad to seek change of status in the United States. Additionally, it allows students who are engaged in post-competition OPT to continue working if the employment authorization extends into what would be the cap-gap period. USCIS advises that students remain in contact with the petitioning employer throughout the cap-gap period.

If an approved petition is withdrawn or if the student decides that he or she would rather continue engaging in OPT (if eligible), the student should consult with an experienced immigration attorney.

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  1. Memo, Pearson, Ex. Assoc. Comm. (HQ 70/23.1RS-P) (Aug. 19, 1998), reprinted in 75 No. 32 Interpreter Releases 1148, 1165, (Aug. 24, 1998)
  2. See 81 FR 13039 (Mar. 10, 2016)
  3. USCIS, “Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations,” (Mar. 3, 2011)
  4. Id.
  5. Id.
  6. Id.
  7. USCIS, “Q&A: Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations,” (Mar. 29, 2012)
  8. Id.
  9. USCIS, “Extension of Post Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations,” (Mar. 3, 2011)
  10. Id.
  11. Id.
  12. Id.
  13. Id.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 882, Print. Treatises & Primers.