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F-1/OPT Cap Gap Benefit and H-1B Quota

March 19, 2011

As a result of the change in immigration regulations in 2008, students in F-1 status (D/S) or post-completion Optional Practical Training (OPT) or in the 60-day grace period subsequent to completing the F-1 related studies planning to obtain H-1B visa will be able to continue their stay in the United States and apply for a change of status to and extension of stay in H-1B.  The “cap gap” regulation allows for change of status to H-1B which typically begins from October 1 of each year.  In order to be eligible for the benefit under the cap gap, the foreign national must be in F-1 status (D/S) or must be in OPT on the date of filing of the H-1B.

If an F-1 student is also in post-completion OPT, he or she will get an extension of employment authorization through September 30.  However, if an F-1 student is not in OPT at the time of filing the H-1B, he or she will only get the extension of stay but not an extension of employment authorization.

What do the F-1 student need to do in order to obtain the cap gap extension of stay and if applicable, employment extension? Besides ensuring that the H-1B is timely filed and maintaining F-1 status, the F-1 student must contact the Designated School Official at the school where he or she is enrolled as a student; provide the school with a copy of the H-1B filing receipt, and have the school print an updated I-20 with information about H-1B filing and cap gap extension.  Doing so effectively continues the student’s stay and if applicable, employment authorization through September 30.

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