F-1 foreign students who meet the following conditions must read this section:

1. Are in a valid F-1 status
2. Have a proper job offer from an employer in the United States
3. OPT will expires before October 1 the current year
4. Will or have filed H-1B petition sponsored by the private employer who is not H-1B quota exempted.

9.1. Basic Provisions

The eligibility date is the date a USCIS Service Center receives a properly filed Form I-129, Petition for a Nonimmigrant Worker, naming the student as a beneficiary of the petition from the prospective employer.

The cap gap extension starts when the student’s current period of F-1 status ends, regardless of whether the student was in a period of OPT. However, if the student was not in a period of authorized post-completion OPT on the eligibility date, the extension of status starts on the day after the student’s initial grace period expires.

9.1.1. What determines the length of the cap gap extension?

The following chart shows how the length of the cap gap extension is determined.

Note 1: If a student’s regular period of OPT extends to June 2, the student does not need to make the request

Note 2: If a student’s regular period of OPT extends to July 28, the student does not need to make the request

9.1.2. If a student was not in an authorized period of OPT on the eligibility date, can the student work during the cap gap extension?

No. In order for a student to have employment authorization during the cap gap extension, the student must be in an approved period of OPT on the eligibility date.

9.1.3. Do students need to file an application or pay a fee to receive a cap gap extension?

No, the extension is granted automatically at no cost. However, as noted on the chart of events impacting the length of the cap gap extension, the student may need to notify the DSO of his or her eligibility for extensions prior to the date USCIS issues a receipt for the H-1B petition listing the student as a beneficiary.

However, it is important to note that although the extension is automatically granted, SEVIS may not be automatically updated to show the extension. Students are responsible for checking with their DSOs and verifying that their SEVIS record has been updated with the extension. See the section on how students will know they have a cap gap extension.

9.1.4. What is the length of the cap gap extensions?

For students with active post-completion OPT, the cap gap extension for both employment and F-1 status starts the date the student’s original OPT expires and ends September 30 unless the H-1B petition for the student is rejected, denied, or withdrawn. In those cases, the employment authorization ends and the grace period begins.

For students whose post-completion OPT expired prior to the filing date of the H-1B petition, the cap gap extension starts at the end of their grace period and ends September 30 unless the H-1B petition for the student is rejected, denied, or withdrawn. However, these students will not have work authorization.

Due to the complexities involved, students will receive cap gap extensions in increments, as the petition goes through the steps of filing, receipting, and adjudication.

• A student who is the beneficiary of a properly filed H-1B petition will have his or her OPT extended to June 2, 2008, and F-1 status extended to August 2, 2008
• A student who is the beneficiary of wait listed H-1B petition will have his or her OPT extended to July 28, 2008, and F-1 status extended to September 27, 2008
• A student who is the beneficiary of a receipted H-1B petition will have his or her OPT and F-1 status extended to September 30, 2008
• A student whose H-1B petition is withdrawn or denied will have his or her OPT extension terminate 10 days after the date of the withdrawal or denial and their F-1 status extension will end 60 days after that. Termination of the automatic extension will not prematurely terminate a student’s period of approved OPT, as shown on the student’s employment authorization document or the student’s original period of F-1 status.

9.1.5. Will students receive personal notification when they have a cap gap extension?

Students will not automatically receive notification when they have a cap gap extension. Students must request a Form I-20 from their DSO showing the period of the extension. In some cases, students may need to notify their DSO they are eligible for the extension.

9.1.6. How will students know they have a cap gap extension?

Students must remain in contact with the employer that filed the Form I-129, Petition for a Nonimmigrant Worker, on their behalf and with their DSO.

Until USCIS issues receipt notices, only the petitioning employer will know when the application was properly filed or wait listed. The student may obtain evidence from the employer for either of these two events and ask the DSO to request a data fix from SEVP. If the student’s current OPT expires before June 2, 2008, it is possible that the student will have to request such a data fix.

When USCIS has receipted an H-1B petition, the information is entered into CLAIMS (the system used by the USCIS Service Centers) and will be used to update SEVIS. However, there are some cases where the data from the interface does not properly update SEVIS. Students are responsible for checking with their DSOs and verifying that their SEVIS record has been updated with the extension.

9.1.7. How will students know if their cap extension is terminated before September 30 due to a withdrawn or denied H-1B petition?

Students will not be personally notified by DHS of a withdrawn or denied H-1B petition, so they must remain in contact with the sponsoring employer and their DSO. It is the student’s responsibility to check regularly on his or her status.

9.2. Proof of the extension of status and work authorization

9.2.1. What proof will students have that they are entitled to the extension of work authorization and status?

SEVP is working to update SEVIS with the ability to print a Form I-20 showing the dates of continued F-1 status and employment authorization.

SEVP is also coordinating with other components of DHS to provide additional guidance on work authorization. This guidance will be updated as soon as the functionality exists or a workaround is developed.

9.3. Issues with SEVIS and the cap gap extension

9.3.1. What if SEVIS does not show that an eligible student’s work authorization and status have been extended?

Students are responsible for checking with their DSOs and verifying that their SEVIS record has been updated with the extension. If the student’s SEVIS record does not properly reflect his or her status, the student should ask the DSO to request a data fix and provide evidence that the student is entitled to the extension.

The evidence needed to support a data fix is:

• For a properly filed H-1B petition
  • A statement from the employer that the student is the beneficiary listed on a properly filed H-1B petition
  • Proof of delivery to a USCIS Service Center showing the date of receipt
• For a wait listed H-1B petition
  • A copy of the wait list letter from USCIS to the employer
• For a receipted or approved H-1B application
  • A copy of the receipt (Form I-797) and/or the receipt number

9.3.2. What are the responsibilities of the DSO for ensuring that SEVIS properly shows the student has a cap gap extension?

DSOs are responsible for:

• Providing status information in response to a student’s request
• Requesting a data fix by calling SEVIS help desk at (800) 892-4829 and forwarding evidence provided by the student

DSOs are not responsible for initiating any actions in connection with the cap gap extensions.

9.4. Student responsibilities during the cap gap extension

9.4.1. Can students travel outside the United States during a cap gap extension period and return in F-1 status?

Yes, provided the student has a valid EAD. See 8 CFR 214.2(f)(13).A student may choose to leave the United States and obtain an H-1B visa to return to the United States to assume H-1B employment.

9.4.2. Do the limits on unemployment time apply to students with a cap gap extension?

Yes. The 90 day limitation on unemployment continues during the cap gap extension.

9.4.3. What do students on a cap gap extension need to report to their DSO?

As with all students on post-completion OPT, the student must report any change of address within 10 days, any legal name change, and interruptions of employment. See 8 CFR 214.2(f)(12),(17).

In addition the student should follow directions in the section on what students should report to ensure that their status does not expire due to excessive unemployment time.

9.4.4. What are the restrictions on the type of employment for a student with a cap gap OPT?

See the section on acceptable post-completion OPT employment.