OPT Cap-Gap Rule for F-1 Students Obtaining H-1B Petitions

If you are an international student on F-1 status and recently graduated, you may be applying for Optional Practical Training (OPT), a 24-month STEM extension, or an H-1B visa. However, you may not know what to do if your OPT authorization (F-1 work permit) expires before your H-1B employment period begins on October 1. The OPT Cap-Gap rule allows eligible F-1 holders to maintain their status if they have a pending or approved and selected H-1B petition. In this article, we’ll explore the cap-gap regulation and its requirements.

Who Can Take Advantage of the OPT Cap-Gap Rule?

Students with expiring OPT work permits can take advantage of the cap-gap rule and keep working if and only if they have a “timely-filed” H-1B petition under the cap. The H-1B visa is a nonimmigrant work visa designated for professionals who work in jobs that are considered specialty occupations. Compared to other work visas for skilled workers, the requirements are relatively lenient. There are currently 65,000 spots allotted in the regular H-1B cap, plus another 20,000 available for candidates with a U.S. master’s degree or higher from an eligible institution. H-1B applicants who work at non-profit research facilities or universities are exempt from the aforementioned allotted cap.

Moreover, the numerical cap does not apply to those changing employers or extending their visas. Under the OPT Cap-Gap rule, students with a pending or approved H-1B petition can stay and work in the United States even if their original visa is out of status. This rule essentially fills in a gap that might happen if a student has OPT expiring and doesn’t have H-1B status starting until October 1.

Petitions Must be “Timely Filed” to Count

In this case, the H-1B petition must have been filed during the standard H-1B cap period and while the F-1 student’s duration of status admission was in effect. This could be during the student’s authorized course of the study period, approved post-completion OPT, or the 60-day grace period. The H-1B registration submission period is between March 1, 2022, at 12 p.m. EST and March 18, 2022, at 12 p.m. EST. If you submit your petition outside this window, USCIS will issue a denial. If USCIS chooses your H-1B registration,  your sponsor must file an I-129 petition on your behalf. This petition must include the necessary filing fees as outlined above and any supporting documentation to reinforce your eligibility for the H-1B.

When does the cap-extension period begin?

The cap-gap extension period starts once the H-1B filing is made and goes through until the H-1B petition is fully adjudicated. If the H-1B petition is selected and approved in the H-1B lottery, the F-1 OPT is extended to September 30 (right before H-1B status kicks in). Should the petition be revoked, withdrawn, or denied, this extension will not be granted.

What if my H-1B petition is not selected in the lottery?

Suppose USCIS does not approve or select the petition. In that case, the F-1 student has a 60-day grace period beginning the date of the rejection notice or OPT end date (the later of the two dates) to depart the U.S. VisaNation Law Group has handled countless H-1B petitions including helping clients navigate the OPT Cap-Gap rule.

How Much Does it Cost to Apply for an H-1B Visa?

The lottery registration fee is $10, and the employer is responsible for paying this fee. Browse the table below for a complete breakdown of all other fees associated with the H1B visa. Some fees like the attorney and optional fees may vary. Note that employers must pay for all H-1B fees. The only exceptions where the beneficiary can pay for fees are premium processing fees and visa fees for consular processing. Premium processing is an optional fee.