September 30th Deadline for F-1 OPT Cap-Gap Employment with Pending H-1B

Sabrina Saada

Last Updated On: September 10, 2024 | Published On: September 10, 2024

cap-gap opt

In the 2024-25 H-1B season, we saw many visa petitions from candidates who are currently on F-1 status and working in the U.S. under the optional practical training (OPT) program. A large portion of these F-1 visa holders rely on the OPT cap-gap rule to continue their employment after the OPT expires on April 1st (or for as long as the H-1B petition is not denied or rejected by USCIS). With that said, the OPT cap-gap rule only extends your employment authorization until September 30th which means some H-1B candidates might be at risk of being in a period of unauthorized employment.

As a result of the high demand during the H-1B season as well as the second round of the lottery, we do not anticipate USCIS to have all the H-1B petitions adjudicated by September 30th. Since this will likely be the situation, we expect many F-1 OPT holders to use the OPT cap-gap rule in order to stay employed after the post-April 1st OPT expiration date. The deadline is September 30th however so if the cap petition is still pending after that date, F-1 holders aren’t technically eligible to work under the cap-gap rule. F-1 holders will need to stop working on October 1st and wait for the H-1B petition to be approved, otherwise they risk violating their status.

Will this Affect Your Work Status?

It’s highly advised to discuss your particular situation with your immigration attorney. As a general guideline you may be in danger of losing OPT cap-gap work authorization beyond September 30 if:

  • F-1 OPT expiration date was after April 1st but before September 30th;
  • H-1B cap petition is still pending a final decision with USCIS and;
  • H-1B cap petition was filed requesting a change of status

STEM F-1 students who have submitted a timely STEM OPT extension request are likely to continue working under their pending or approved STEM OPT status.

Can I opt for premium processing to avoid work interruption? 

If you find yourself facing the possibility of having a period of lack unauthorized work, it is recommended to upgrade your H-1B petition to premium processing so that you can get an expedited response (with 15 calendar days). Be aware that it is possible for USCIS to requests additional evidence or issue an RFE on the H-1B petition. In that case, the employer would need to respond to the RFE and then the government would have another 15 days period of response. Give our attorneys a call to learn more about this option and minimize the potential negative impacts to your work status.