The U.S. government restricts the number of individuals who can be approved for H-1B visa status each fiscal year. This restriction is called the H-1B cap. The fiscal year runs from October 1 to September 30. The cap is currently set at 65,000 (+20,000 for US higher degree holders). The earliest day that your employer can file an H-1B petition that is subject to the cap is April 1, which is 6 months before the visa start date of October 1. Universities and colleges are exempt from the cap, and are not subject to the same restrictions as private sector employers.
The H-1B cap-gap occurs when your cap-subject employer files an H-1B petition for you, but your F-1 status or OPT work authorization expires before you begin your H-1B status on October 1. For example, if your OPT ends May 30, but your H-1B will begin October 1, there would be a gap in work authorization between May 30 and October 1. This is the so-called cap gap.
If your employer has filed your cap-subject H-1B petition for you, and it has been selected for processing, but you have a cap-gap, your stay may be extended until September 30.
OPT Cap-Gap Basics:
- Your H-1B petition must have been filed on the basis of change of status, not consular processing.
- If you are on active OPT when your H-1B petition was filed, and your H-1B was selected for processing, your OPT authorization automatically extends and you may continue to work to September 30.
- If you are in your 60 day grace period when your H-1B petition was filed, and your H-1B was selected for processing, your legal stay is extended to September 30, but you will not have work authorization until your H-1B becomes effective.
- If your H-1B petition is rejected or denied, and your OPT EAD has already expired, you will begin your 60-day grace period. You must stop working.
- Your OPT Cap-Gap extension lasts only through September 30. If your H-1B is still pending on October 1, you must stop working until the H-1B is approved and becomes effective.
- If your H-1B petition is not subject to the cap, you are not eligible for the OPT Cap-Gap Extension. Your H-1B must become effective no later than the day after your OPT expires in order to maintain your employment authorization.
You may request an updated Form I-20 from ISSS to document your OPT Cap-Gap Extension. Please allow at least two weeks for processing.
Complete the Cap Gap Extension Request record. In the record, upload:
1) A copy of your H-1B approval notice, with new I-94 on the approval notice (if your H-1B has already been approved)
2) A copy of your I-797 receipt notice to document your pending H-1B petition AND page 2 of the filed I-129 petition (black out the SSN before sending).
ISSS will email you when the document is ready for pick-up or mailing.