Many people come to the United States as students on an F-1 visa to further their education. Often, these students work in the U.S. during or following their studies and form relationships with employers. This can, in turn, lead to an offer of work visa sponsorship, such as for an H-1B technical specialty worker. But what happens if you are proceeding with a plan like this, then realize that your student visa status will expire before your H-1B status is due to begin?
Something called the H-1B “cap gap extension,” an automatic allowance of extra time on one’s F-1 status, can help make sure you don’t end up spending unlawful time in the United States.
Employers face a small window of time in which they can apply to get first-time H-1B visas for their employees. All applications must be filed during an annual designated filing period. That’s because the law imposes a limit (cap) on how many H-1B visas are granted each filing period—and once they’re gone, that’s it for the fiscal year, which switches over on October 1.
The cap is set at 65,000 slots for “regular” H-1B petitions and an additional 20,000 slots for candidates who have a Master’s degree or higher, bringing the total to 85,000 H-1B visas granted each year. Demand has, in recent years, always exceeded supply. (For H-1B visa details, read H-1B Visas for Temporary Specialty Workers.)
The issue is that most students finish their coursework in June, but H-1B visas don’t normally become available until October. This time period between F-1 expiration and H-1B approval is exactly the problem known as the “cap gap.”
As a side note, not every potential H-1B worker faces this issue, because of various exemptions from the cap, such as for people working for certain nonprofit organizations, certain higher education institutions, or applying for an extension of previously granted H-1B status. (See How to Find a Cap-Exempt H-1B Job.) Employers can file petitions for those jobs at any time, thus there is no systemic cap-gap problem and no automatic extension.
As with any visa status, once an F-1 visa expires, the law requires the visa holder to either leave the U.S., extend status, or change to a new and different different status.
However, once the foreign student finds a sponsor for an H-1B visa, the time period between when most F-1 visas expire (May or June) and when the H-1B visa would be granted in October can be covered by the cap gap automatic extension of F-1 status. This extension is available only to students with a pending H-1B petition.
The cap gap extension also may extend F-1 students’ work authorization. You might be able to get work authorization after graduation through the optional practical training (“OPT”) program (described in Hiring International Students Recently Graduated from U.S. Schools). Ordinarily, OPT work authorization is temporary however, and might not last until H-1B sponsored job begins without the help of an extension.
Also realize that the extension does not grant the ability to work in the U.S. itself. If you are an F-1 student without work authorization, but you otherwise qualify for the cap gap extension, you may remain in the U.S. during the summer while your H-1B petition is pending, but you would need to find other means of work authorization if you want to find employment over the summer.
In order to use the cap gap extension, your employer must make sure to file your H-1B petition with USCIS before your F-1 visa expires.
What exactly counts as a filing with USCIS? Under a new registration process that USCIS implemented for the 2020 filing period and 2021 fiscal year, two things must happen before a sponsoring employer can file an H-1B petition: 1) the employer must submit the required online registration to the H-1B lottery, and 2) USCIS must select that entry. Only after both things have happened does the employer have a green light to submit the H-1B petition.
It is the H-1B petition, not the online lottery entry, that must be filed before the F-1 visa expiration date in order for the student/worker to get a cap gap extension. For example, if your F-1 visa expires on April 20, not only must USCIS have selected your H-1B registration, but your employer must also get your H-1B petition filed with USCIS prior to April 20.
As you can see, there are no guarantees you’ll get through this process successfully. If your employer’s H-1B registration is not selected in the lottery, your visa and corresponding work authorization will expire as of your F-1 expiration date, unless you manage to get an extension of that F-1 status. Similarly, if USCIS denies the employer’s H-1B petition and you aren’t able to extend your F-1 status, your right to be in the U.S. will expire as of the date of the denial.
One handy thing about the cap gap extension is that there is no formal application required. As long as the employer files the H-1B petition on time as discussed above, this will automatically extend a foreign student’s F-1 status and OPT work authorization (if any until your H-1B start date, which will be no earlier than the first day of the fiscal year (October 1st).
Traveling internationally while on a cap gap extension can pose serious risks. As discussed, you are allowed to remain in the United States after your F-1 visa expires and while waiting for your H-1B status to be approved under the cap gap provisions.
However, if you leave the country during this time, and you are not pursuing studies that would qualify you to get a new F-1 visa, you will not be able to reenter the United States in F-1 status. This means that unless you are able to obtain a new visa for reentry, you will need to remain outside of the United States until able to do so, whether on an H-1B visa or some other.