Are you an F-1 international student who is completing your Optional Practical Training (OPT) in the United States and will be starting an H-1B job in the fall? Because H-1B visa jobs begin in October, many individuals completing OPT lose their employment authorization or even their status to remain in the country for up to a few months prior to beginning their H-1B employment. However, there is an option for extending your authorization: cap-gap extension. Let’s take a look.
What is a cap-gap extension?
A cap-gap extension is a way of extending your OPT employment authorization or ability to remain in the country up until H-1B employment begins or while your H-1B application is being processed.
How do I file for a cap-gap extension?
A cap-gap extension is available to students whose employers have submitted the Form I-129 requesting Change of Status and have listed an employment start date of October 1. However, it is critical that the I-129 is filed and received by USCIS before the expiration of the OPT or 60-day grace period. See our other article on the basics of OPT “An International Student’s Guide to Gaining Practical Work Experience.”
For those currently working while on OPT when the filing is received by USCIS, the cap-gap extension extends OPT employment authorization until September 30th or until a decision is reached on the H-1B visa petition. If you have secured an H-1B approval and job beginning in October, the extension will allow you to work continuously until you begin your H-1B employment.
For those who file the I-129 during the 60 day grace period, OPT employment authorization status is not extended. This means you cannot work. However, the F-1 status will be extended until September 30th, and you can remain in the country until that date.
What happens if I do not get a cap-gap extension?
If you are not eligible for a cap-gap extension, you will have the standard 60-day grace period allotted to all OPT students when your OPT expires. This will give you 60 days to travel within the U.S., make arrangements to leave the country, or file for a change of status. Unfortunately, you may not work during this grace period.
If I am working for the same employer for OPT and future H-1B, how does this affect my benefits with the employer during the gap between the end of OPT and the start of H-1B?
The cap-gap extension is meant to provide a smooth transition for an employer and employee who had a previous working relationship prior to the commencement of the H-1B employment. If you were previously working for the same employer, you may have certain employment benefits which you do not want to lose or which may be interrupted during the transition period from your OPT ending and H-1B employment beginning. Therefore, one of the great benefits if you have qualified for the cap-gap extension during the OPT period, is that you can maintain the employment benefits you have with your employer, including any insurance, during the gap.
You may also read: Similarities and Differences Between the H-1B and O-1 Visas
Why hire an immigration attorney?
The cap-gap extension offers an important opportunity for individuals completing their OPT year who would like to work continuously until beginning H-1B employment in the fall. Nonetheless, timing is critical if you want to receive an extension for your employment authorization. Hiring an experienced immigration attorney can help make the process easier by providing you with support at every stage. If you are interested in learning more about the cap-gap extension and whether you are eligible, contact us for a consultation.
