Institutions of higher education or their affiliated or related nonprofit entities, as well as nonprofit and government research organizations, are exempt from the H-1B cap. They can file H-1B petitions any time of the year and are not subject to the numerical limit. Cap-exempt employers may plan in advance to avoid any gap between OPT and the H-1B status begin date. Since they are exempt from the cap, the information below does not apply.
What Are the H-1B “Cap” and “Cap Gap”?
The number of people who can obtain the H-1B status is regulated by a numerical limit, or “cap”, each fiscal year.
- April 1 marks the opening of the H-1B cap filing season, when U.S. Citizenship and Immigration Services (USCIS) begins accepting petitions for H-1Bs for the coming fiscal year.
- The federal fiscal year runs from October 1 to September 30.
If a person's H-1B is subject to the cap, and if that person's OPT expires before September 30, the time in between the EAD expiration and October 1 is called the “cap gap.”
What Are “Cap Gap” Extensions and Who is Eligible?
If you meet all of the following eligibility criteria, you may be entitled to an extension of F-1 status and employment eligibility to cover the “cap gap” period:
- You have properly maintained F-1 status
- Your employer filed an H-1B petition for “Change of Status” (not “Consular Notification”) on or after April
- The petition is subject to the H-1B cap count
- The petition must request an H-1B employment start date in the fiscal year for which the H-1B status is being requested
- The H-1B petition was filed before your EAD expired
If your registration is selected in the lottery, this does not mean that you are eligible for the Cap Gap extension. Your sponsor should receive an I-797 notice of your selection, but they still need to file the H-1B petition in a timely manner in order for you to be eligible for the Cap Gap extension.
The cap-gap extension of status and work authorization ends on April 1, when the H-1B status begins. The automatic extension of status also applies to your F-2 dependents.
If conditions 1-4 above are true but the H-1B petition was filed in the 60-day grace period following the end of your OPT, you are not eligible for the “cap gap” extension of employment eligibility. You may still be eligible to remain in the United States until October 1 if the H-1B petition is approved. Consult the immigration attorney for your employer for information about this scenario.
When and How Should I Request a “Cap Gap I-20 Reprint”?
If you meet eligibility criteria 1-5 above, the cap gap extension of F-1 status and employment eligibility is automatic. Individuals with a receipted H-1B petition are eligible for an automatic extension of F-1 status and, if otherwise eligible, any authorized OPT until April 1 of the following year. The H-1B petition receipt notice is not the same as the registration selection notice.
- You do not need to separately apply for a cap gap extension.
- USCIS is expected to notify SEVIS of the H-1B petition, and SEVIS should automatically update your record with the cap gap extension information.
- Once your H-1B petition has been receipted by USCIS, you may request a Cap Gap I-20 Reprint.
You may want an updated I-20 for reasons such as:
- Your employer may want to review it and retain a copy for employment records.
- You may need an updated I-20 for other purposes, such as renewing a driver's license.
Generally, we recommend waiting a few days after learning that your H-1B petition has been receipted before submitting your Cap Gap I-20 request. This allows time for USCIS and SEVIS to synchronize and automatically update your SEVIS record.
- The physical H-1B Receipt Notice (Form I-797) may take an additional week or two to arrive by mail, but you or your employer may receive confirmation that the petition has been receipted sooner. You do not need to wait for the physical Receipt Notice before submitting your request.
- Keep a copy of the Receipt Notice once it becomes available. If USCIS and/or SEVIS do not automatically update your SEVIS record, the Receipt Notice may be needed for troubleshooting and data correction purposes.
Before requesting the Cap Gap I-20 Reprint, please check your OPT Employer Record and update with any changes, as necessary.
To request your Cap Gap I-20 Reprint, log in to the M-Passport portal, click on Requests > Cap Gap I-20, and follow the instructions from there.
Other FAQs
- How Long Will It Take to Get a “Cap Gap I-20 Reprint”?
Remember, the International Center is simply reprinting the I-20 for you. If USCIS and SEVIS have made the proper updates, processing time is the same as for any other reprint (5-10 business days).
Unfortunately, sometimes USCIS and/or SEVIS fail to make the proper updates to a student's SEVIS record. In this case, it may become necessary for an International Student/Scholar Advisor (ISSA) to intervene on your behalf by filing a “data fix” ticket with SEVIS Help Desk. The Help Desk must process the data fix before the International Center can produce your Cap Gap I-20 Reprint; their processing time can range from weeks to months. If a data fix is necessary, the ISSA who receives your reprint request will inform you and maintain communication with you.
- What are Reporting Requirements During Cap-Gap Extension Period
Students who remain in the U.S. under the “Cap Gap” regulation remain in F-1 status and must continue to report:
- address changes through Wolverine Access
- employment information to the IC through the M-Passport portal
- What if the H-1B Petition is Not Approved?
If your H-1B petition is denied, withdrawn, revoked, rejected, is not selected, or if the change of status request is denied or withdrawn even if the H-1B petition is approved for consular processing, the “cap gap” extension of employment eligibility will immediately terminate.
- Typically, you will have 60 days (from notification of the above circumstances) to depart the U.S.
- If, however, the denial is because of a status violation, there is no grace period.
- Can I Travel Internationally During the “Cap Gap” Period?
After an H-1B petition with Change of Status is filed, consult your employer's immigration attorney about all international travel, whether or not your EAD is expired.
If your EAD is expired, you will not be able to re-enter the U.S. in F-1 status.
You may consult your employer's attorney about whether and when you may be eligible to re-enter the U.S. in H-1B status.