The H-1b Cap Gap is a short extension of approved OPT/STEM OPT to cover the gap between OPT/STEM OPT ending and the selected, approved H-1b taking effect on October 1 of any given year.
Eligibility for the Cap Gap:
- Student must have an H-1b petition selected in the registration lottery AND filed with USCIS BEFORE their OPT/STEM OPT expires
- H-1b petition must be for a change of status, NOT consular processing.
- Change of status means the petition is asking to change your status to H-1b in the US, without leaving the country.
- Consular processing means the change to H-1b will only take place after the H-1b is approved AND the person leaves the US, applies for an H-1b visa, and returns to the US with the H-1b visa.
Timeline for H-1b and the Cap Gap:
- Student has approved OPT or STEM OPT Extension that is not expired.
- Employer registers for an H-1b for the student in the H-1b lottery registration system between March 1-20
- USCIS randomly selects cases to be reviewed for H-1b status from the pool of applications accepted – there are H-1b’s each year for 65,000 individuals with a Bachelor’s or higher (including Master’s and PhD), and another 20,000 for individuals with a US Master’s degree or higher.
- Employer has 90 days to file the complete H-1b petition (latest date would be roughly be late June)
- If the student’s existing OPT or STEM OPT is valid at least until the H-1b petition is filed and receipted during the 90 days after the case is selected in the registration lottery, the student’s OPT/STEM OPT will be automatically extended until September 30 of the same year.
- The approved H-1b takes effect on October 1, and F-1 status and OPT/STEM OPT are closed automatically.
Important Consideration for F-1 Students:
- Communicate your OPT/STEM OPT end date with your employer VERY clearly – it your case is selected in the lottery, your OPT/STEM OPT MUST be valid until the H-1b petition is filed and a receipt received in order to get the Cap Gap Extension.
- If your case is selected in the lottery, but the H-1b petition is NOT submitted before your OPT/STEM OPT expires, you will NOT receive the Cap Gap. This means you will not be able to work in the US until the H-1b is approved AND takes effect on October 1.
- If you are on OPT, and are eligible for STEM OPT Extension, it is usually a best practice to apply for the STEM OPT Extension a a back-up in case your H-1b is not selected or approved, and also in case your OPT ends in the middle of this process, so you don’t have to rely on the timelines of the Cap Gap to keep your work permission.