OPT Automatic Extensions
for H-1B Cap Gap Relief
Under new regulations for Optional Practical Training, students listed as the beneficiary of a pending or approved H-1B petition may be eligible for an automatic extension of their F-1 status and OPT employment authorization. The extension is meant to relieve the burdens to such workers and their U.S. employers created by a gap in work permission between F-1 OPT and H-1B Temporary Worker status. This benefit is only applicable to H-1B petitions filed by cap-subject employers.
The impact and implementation of these new rules remain unclear. On April 25th, the USICE Student and Exchange Visitor Program published formal Policy Guidance on Updates to Post-Completion Optional Practical Training (see link below). The details and guidelines pertaining to the OPT Cap Gap extensions are summarized below. This page will be updated with the most recent information, as it becomes available.
Eligible Extension Period for F-1 OPT
The Cap Gap extension is granted in stages, depending on the current status of the H-1B application. If your current OPT authorization already covers the full period through October 1st of the upcoming fiscal year, this extension will not be necessary. Otherwise, if your OPT will expire before October 1st, the Cap Gap extension will vary with the processing of your H-1B application.
Once a petition is properly filed, F-1 students are eligible for a temporary extension through the period when all H-1Bs are expected to be assigned under that year's quota. If an application is moved to the wait list, pending other case decisions and cap availability, the extension is granted further. If the application is receipted, meaning it has been selected under the quota, the extension is valid through the end of the fiscal year (Sept. 30th), when an approved H-1B status would then take effect. In the event that the application is withdrawn or denied, the extension is shortened to 10 days from that action. If your current OPT authorization surpasses your eligible extension period, your OPT remains valid through the approved end date. In all of these scenarios, the standard F-1 grace period of 60 days is available after the work permission expires. According to the published SEVP Policy Guidance, the table below shows the relevant dates for OPT Cap Gap extensions during the current H-1B cycle.
IMPORTANT - The extension is granted only for the permissions that were authorized on the day the H-1B petition is properly filed. If your OPT is still valid at that time, then your F-1 status and your employment authorization are both extended. However, if your OPT has already expired when the H-1B application is submitted, only your permission to stay in the U.S. in F-1 status will be extended.
Action |
Extension Period |
|---|---|
| Properly filed H-1B petition | June 2nd |
| Selected for wait list | July 28th |
| Receipt Notice issued | September 30th |
| Application denied/withdrawn | 10 days after notice |
Documentation of Extended OPT Period
The Cap Gap extension for OPT takes effect automatically, but the relevant dates will vary by individual and over time. USCIS has communicated no plans to update the Employment Authorization Document (EAD card) or issue other documentation to authorize the additional OPT period. Students who intend to use this benefit are encouraged to print a copy of the new regulation in the event that they must show that their F-1 status and work permission are still valid. A link to the Interim Final Rule published on April 8, 2008 in the Federal Register is listed below.
As needed, the ISO can update your I-20 to list the new end date of your OPT. With appropriate documentation of the status of your H-1B petition, the ISO can request a change to the Duration of Employment listed on page 3 of the I-20. Such changes must be handled through the SEVIS Help Desk and will require sufficient time to report and process the update. A new I-20 will then be issued to reflect the extended OPT period, but will not change the original recommendation or the EAD card. It is important to distinguish between the actual extension period and the information printed on the I-20. Keep in mind that any changes to your H-1B application will determine the valid extension date, regardless of what the I-20 shows. F-1 students will need to communicate regularly with their employer to make sure they are aware of the status of their H-1B petition.
To request an updated I-20 from the ISO, please provide appropriate documentation.
- Extensions based on a properly filed H-1B petition:
Letter from the employer stating details of the application & filing date - Extensions based on a Receipted or Approved H-1B:
Copy of the I-797 Receipt Notice or Approval Notice - Extensions based on a Wait List application:
Copy of the USCIS notice of a wait-listed petition
Travel during OPT & Cap Gap Extensions
F-1 students are eligible to travel abroad, but it is often a risky option and should always be carefully considered. During authorized periods of OPT, re-entry to the U.S. requires standard immigration documents (passport, I-20, & valid F-1 visa, as needed) plus the EAD card showing that the recommendation for OPT was approved. It is also recommended to carry proof of employment in the form of a paystub, letter, or offer of employment. Without these documents, it is not advised to travel.
During a valid OPT Cap Gap extension, the EAD card will have already expired and the ability to document and prove eligibility for continued F-1 status could be more difficult. There is no guidance yet from U.S. Ports of Entry whether an updated I-20 will be sufficient documentation of the extension to allow re-entry. Furthermore, students who require an F-1 visa renewal are in danger of a denial, since an approved H-1B makes it very difficult to prove non-immigrant intent under F-1 regulations.
Travel should also be considered based on the type and status of the H-1B petition. Applications filed for a "Change of Status" are considered abandoned when the beneficiary travels while it is still pending. After the Approval Notice is issued, travel prior to the H-1B start date should not impact the Change of Status (provided you are able to return in valid F-1 status). Applications filed for "Consular Notification" require that the beneficiary obtain an H-1B visa stamp and enter the U.S. in that category, not more than 10 days prior to the authorized start date. Travel during the application period is possible, but the same issues remain in terms of documenting F-1 eligibility upon re-entry at a U.S. Port of Entry. Additionally, the F-1 Cap Gap extension will only cover the remainder of the current fiscal year (Sept 30th), meaning that travel and re-entry with a valid H-1B visa will then be required to maintain work permission.
Students who wish to travel are cautioned to review their individual circumstances, timing, and documentation before they leave the U.S. If travel is necessary, it will be very important to discuss your plans with your employer and understand the effects and strategies to deal with a delayed or denied return in F-1 status.
Links & Resources
- Federal Register notice (4/8/2008):
Discussion of the OPT Cap Gap extension on page 18949, section B - SEVP Policy Guidance (4/25/2008):
Updates to Post-Completion Optional Practical Training, Section 9, pages 25-30
