In the past, the student would either need to leave the country and wait until October 1st to come back to work, or re-enroll in classes to maintain the F-1 status until October 1st when the H-1B would kick in. Now, a student with a pending H-1B petition requesting a change of status will automatically be eligible for a cap-gap extension of the OPT. This allows the student to continue working from the time the OPT expires to September 30th. The H-1B would theoretically start on October 1st and there would be a seamless transition from OPT to H-1B. The extension is automatic; no action needs to be taken by the student. If documentation of the extension is needed for a driver’s license renewal or to document continued employment authorization for the employer, a student has the option to request a new I-20 from the school which confirms the extension.
There are some problems that can arise during the cap-gap extension- some examples:
Q: Can the Cap-Gap extension of OPT be extended beyond September 30 if the H-1B petition filed on the student’s behalf has not been adjudicated by USCIS? Can I keep working under the cap-gap extension?
A: No. Pursuant to 8 CFR 214.2(f)(5)(vi)(A), the duration of status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) and (C), of an F-1 student who is the beneficiary of an H-1B petition and request for change of status can only be extended until October 1. If the H-1B petition is pending beyond October 1, a student can remain in the United States based on the pending change of status petition. However, a student with OPT employment authorization extended through the Cap-Gap period must stop working until the H-1B petition is approved.
Q: My H-1B did not request a change of status, it is for consular processing. Am I eligible for the cap-gap extension?
A: No. The cap-gap extension is only for those who have requested a change of status from F-1 to H-1B on the I-129 petition.
Q: My H-1B has been denied and my OPT is already expired. Now what?
A: The 60-day grace period begins from the date of denial. During this time, you must stop working. You can make arrangements to leave the country, re-enroll in school for a new program, or look into any other visa options that may be available to you.
Q: My H-1B is approved, my OPT has expired, and I want to change jobs before October 1st. Can I?
A:. Your new employer would need to file a new H-1B petition requesting a change of status from F-1 to H-1B. You would not be subject to the quota because you were already counted when the first H-1B petition was approved. However, if the first employer withdraws the approved H-1B before the second one is approved, there can be a problem.
Q: My H-1B is approved, my OPT has expired, and I want to travel before October 1st. Can I come back on my OPT?
A: No. The cap-gap extension is not available for a person who exits the country. Travel is not recommended. But if it is unavoidable, you need to stay outside the country until October 1st, apply for a new H-1B visa stamp when your H-1B is approved, and then can return to the U.S. in H-1B status to start working again.