The cap gap extension covers the gap of time between when the F-1 Optional Practical Training (OPT) ends and H-1B temporary worker visa status begins. This is extremely important for students who are beneficiaries of approved or pending H-1B visas, as they are able to stay in the United States with an automatic extension of the F-1 student visa and the OPT authorized employment. Without the cap gap relief, an individual would have to leave the country at the expiration of the F-1 visa and return at the start of the H-1B. Or, if the foreign student remained past the F-1 visa, he or she would fall out of status and would not be able to obtain an H-1B visa. 
We believe California employers and companies, as well as potential employees, should consider the following in order to ensure a smooth transition from F-1 OPT status to H-1B status:

  • The application for an H-1B must be filed in a timely manner and while H-1B visas are still available
  • The H-1B quota is filled quickly, the H-1B cap is usually met within the initial April 1 filing period
  • All cap-subject petitions have a start date of October 1
  • If granted a cap-gap extension, a student cannot travel outside of the United States and return on F-1 status
  • If the H-1B petition is rejected or denied, the OPT cap gap extension is then revoked

There are specific steps to take and paperwork to file in order to proceed smoothly from F-1 OPT status to H-1B visa status.

Vaughan de Kirby
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San Francisco California EB-5 Investment Immigration Attorney
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