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Reminders about Cap-Gap for F-1 Students Selected in Second H-1B Lottery

On July 29th, employers and attorneys started receiving notification of additional selections for the second H-1B lottery. The timeline to file the H-1B cap petitions that were selected in this second lottery is between August 2, 2021 and November 3, 2021. It is important to remember that selection alone does not automatically qualify an F-1 student for cap-gap.

F-1 students that are on OPT/STEM OPT, or students in their 60 day grace period, that are looking to utilize cap-gap to understand what needs to be done to qualify for cap-gap and it is important for employers to make sure they submit timely filed H-1B cap petitions in order to qualify the F-1 student for cap-gap.

What is cap-gap and how does one qualify?

8 C.F.R. § 214.2(f)(5)(vi) is the regulation which addresses cap-gap. In this regulation, F-1 students can qualify to have their duration of status and OPT (if applicable) extended to expire on September 30th of the same year in which the H-1B cap petition is filed. In order to qualify for cap-gap, the following requirements must be met:

  1. The H-1B cap petition was filed as a change of status.
  2. The H-1B cap petition was timely filed.
  3. The H-1B requests an employment start date of October 1st of the same year.
  4. For those trying to extend work authorization, the H-1B cap petition must be filed before the expiration date of OPT/STEM OPT.

When SEVIS receives data about a pending H-1B petition from USCIS, SEVIS should update the record to show the cap-gap extension. However, if SEVIS failed to update the system, the designated school official (DSO) can request a data fix with the SEVP Response Center to add the cap-gap extension to the student’s record. With the cap-gap notation, the student can continue to work until September 30th (assuming the H-1B cap petition was filed before the expiration of OPT) unless the H-1B gets denied or withdrawn. A denial or withdrawal of an H-1B ends cap-gap eligibility. 

Is an F-1 student in their 60-day grace period eligible for cap-gap?

F-1 students who have entered the 60-day grace period are eligible for cap gap assuming they qualify based on the criteria listed above. However, F-1 students who have entered the 60-day grace period are not authorized to work during this time. If an H-1B cap petition is properly filed during the 60 day grace period, the student will receive the automatic extension of his or her F-1 status, but will not be authorized to work.

What about F-1 students who do not qualify for cap-gap?

F-1 students that do not qualify for a cap-gap extension and whose period of stay expires before October 1st will be required to leave the U.S. However, an employer can still file an H-1B cap petition if they are selected in the second lottery, but the employer will have to request consular processing.

Again, it is important to note that the registration or the selection in registration does not automatically qualify an F-1 student for cap-gap. It is important for employers and their employees currently on F-1 status to work together to ensure timely filing of their H-1B cap petition and to remain mindful of the OPT expiration date or the end of F-1 student’s 60 day grace period.  If you have questions about whether a situation qualifies for cap-cap, contact a Reddy & Neumann attorney.

By: Kristina M. Hernandez