H1B Cap-Gap Protection

Each year after the H1B Cap has been met, we receive questions from F-1 students that are currently working on OPT for an employer that would like to hire them as an H1B temporary worker. The common dilemma is that their OPT is about to expire and the H1B Cap has been met, leaving a gap between the end of their OPT and October 1st, the earliest start date available for the new H1B fiscal year. This is often the reality for many F-1 students at the end of their OPT. Fortunately, U.S. Citizenship and Immigration Services (USCIS) is aware of this dilemma and has come up with a method by which qualifying F-1 students are able to bridge the gap between the end of their OPT and the beginning of their H1B employment. This is done through what is commonly referred to as, “H1B Cap-Gap Protection.” This article addresses some of the commonly asked questions about how H1B Cap-Gap Protection applies to F-1 students.

  1. What is the H1B Cap? The H1B Cap is a limit on the number of foreign workers that can be granted initial H1B visas during each fiscal year. The H1B Cap is currently 65,000 for those holding a Bachelors degree or it’s equivalent. In addition, the first 20,000 H1B petitions filed on behalf of foreign workers that have obtained a U.S. Master’s degree or higher are exempt from the  Cap.
  2. What is “cap-gap”? Cap-gap occurs when the H1B Cap fills prior to the expiration of an F-1 student’s OPT and before the start of the new H1B fiscal year, potentially rendering the student out of status. This often means that the F-1 student must wait until October 1st (The start of the new fiscal year) before they can change their status to H1B. The gap between the end of an F-1 student’s OPT and the start of H1B employment, is what is referred to as, “cap-gap.”
  3. How can I fill the “cap-gap”? Qualifying students are able to file an H-1B petition before the end of their F-1 OPT and up to sixth months before the start of their potential H-1B employment. Students with an approved or pending H-1B petition are allowed to remain in F-1 status during the time when their status would otherwise expire, up to the start of their H1B employment. This is commonly referred to as, “filling the cap-gap.”
  4. How do I get proof of my continuing status under “Cap-Gap”? Students that are the beneficiaries of a timely filed H-1B petition can  present proof of the filing to their designated school official (DSO). The DSO will then issue an interim cap-gap I-20 showing the extension.

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