H-1B

Change of Status from F-1 to H-1B: F-1 Cap Gap Extension explained

Written by

OnBlick Inc

Updated On

September 15, 2023

Header image

By now you must have heard that the United States Citizenship and Immigration Services (USCIS) has completed the initial electronic registration selection process. The agency has also notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

We believe that the petitioners and/or their legal representatives with selected registrations have started filing the H-1B Cap Petitions for the Fiscal Year (FY) 2022 from April 1st onwards. Are you someone who plans to sponsor an F-1 nonimmigrant student? Then you must take care of various aspects including the change of the student’s status from F-1 to H-1B. Here’s everything you need to know in this regard.

Extension of the F-1 status

According to the Department of Homeland Security (DHS), some F-1 students may extend their F-1 status beyond the end of their academic program or any authorized Optional Practical Training (OPT), if:

  • The employer files a timely Form I-129, Petition for Nonimmigrant Worker, with U.S. Citizenship and Immigration Service (USCIS), requesting a change of status to H-1B.  
  • The H-1B petition asks for October 1 as the start date.
  • The student’s status ends between April 1 and September 30, including any applicable grace period.

What is F-1 Cap Gap?

"Cap Gap" refers to the time between the expiration of an F-1 student’s OPT and the start date of an H-1B petition. In simple terms, it is the period between the end of F-1 OPT and the beginning of H-1B status. USCIS states that a cap gap occurs because an employer may not file, and the agency may not accept, a cap-subject H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  

As a result of this, April 1 becomes the earliest date that an employer can file an H-1B cap-subject petition for the following FY that starts on October 1st. If the H-1B petition and the accompanying change of status request are approved by the USCIS, the student may begin the approved H-1B employment on October 1st, provided that the beneficiary’s OPT employment authorization expires before the H-1B start date.

USCIS’s provision for eligible students

Although F-1 nonimmigrant students with degrees in Science, Technology, Engineering, or Mathematics (STEM) may apply for a 24-month extension of their post-completion OPT employment authorization, USCIS’s policies regarding the cap gap extension remain the same. As per the agency, an F-1 student who is the beneficiary of a cap-subject H-1B petition, requests for change of status that is filed on time, may have their F-1 status and any current employment authorization extended until the first day of the new fiscal year (i.e., October 1).

If approved for a change to H-1B status that cannot take effect until October 1, students whose F 1 status ends between April 1 and September 30 face a potential gap in their ability to stay and/or work legally in the United States. DHS notes that the cap gap extension allows them to:

  • Stay legally in the country (with any F-2 dependents), if the petition is filed before the end of their grace period.
  • Extend work authorization for any approved, post-completion OPT or STEM extension OPT that extends to or beyond April 1, if the petition is filed before the end of their approved OPT.

When Student and Exchange Visitor Information System (SEVIS) gets data about a pending H-1B petition from USCIS, it updates the record to show the cap gap extension. Nonetheless, if the record is not updated by an automated interface, the Designated School Official (DSO) can request an SEVP Response Center (SRC) data fix to add the cap gap extension for H-1B petitions that have been receipted with USCIS.

Who are not eligible for Cap Gap extension?

DHS states that the following categories are not eligible for the extension:

  • A petition asking for consular processing.  
  • Petitions submitted by cap-exempt employers. The employers that are exempt from the cap include:
  1. Institutions of higher education.
  2. Nonprofit research organizations.
  3. Government research organizations.

Note: Cap-exempt employers can file for H-1Bs at any time, even if the cap has been reached.

H-1B Petition Filing Timeline

Concerning the H-1B petition filing timeline, employers have to keep the following points in mind:

  • You must register an individual request to USCIS for each H-1B petition they want to file for the fiscal year (FY). This needs to be done electronically before April 1.
  • By March 31, USCIS notifies employers of the first round of petitions that they may file.  
  • USCIS may later add more rounds of selected employers for filing petitions until the FY cap is met.
  • If your petition is not selected, the student is not eligible for the cap gap extension at all during this FY.
  • Selected employers have a 90-day window to file the selected petitions.

Important Dates in SEVIS for Cap Gap Extensions

Source: DHS

Effect of H-1B Petition on F-1 Status during Cap Gap

A cap gap-eligible student’s status is affected by one of the following statuses in an H-1B petition:

Source: DHS

What happens to H-1B petitions that are not selected?

USCIS pronounces that the cap gap extension of status will automatically terminate if the student’s H-1B petition is denied, withdrawn, revoked, rejected, or is not selected, or if the change of status request is denied or withdrawn even if the H-1B petition is approved for consular processing. The student will have the standard 60-day grace period from the date the extension of status terminated or their program end date, whichever is later, to depart the United States (however, the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied or revoked due to a status violation, misrepresentation, or fraud).

Note: F-1 students who have entered the 60-day grace period are not authorized to work. If an H 1B cap-subject petition is properly filed for a student who has entered 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 since the student was not authorized to work at the time H-1B petition was filed.

As per the USCIS, F-1 students who do not qualify for a cap gap extension and whose periods of authorized stay expire before Oct. 1 are required to leave the United States. They then need to apply for an H-1B visa at a consular post abroad, if applicable, and seek to be readmitted into the United States in H-1B status for the dates reflected on the approved H-1B petition.

Maintaining a valid F-1 status

If the employer withdraws the H-1B petition before the date that the student officially changes to H-1B status, the student generally will remain in F-1 status while the data fix is pending. The student would have the standard 60-day grace period to depart the United States unless the H-1B petition was revoked because of fraud or violation of status.

If the employer withdraws the H-1B petition approval after the date that the student officially changes to H-1B status, the student’s status will have been changed from F-1 to H-1B. The student will no longer be in valid F-1 status and would need to file a Form I-539 if seeking to change back to F-1 status.

Instructions to students and petitioners

As the USCIS adjudicates the filed petitions, it recommends the selected employers and students to work closely while on the 90-day petition filling period to make sure that:

  • The petition is filed before the student’s OPT authorization expires, so the student can legally continue working.
  • The petition is filed before the end of the student’s grace period, so the student can legally stay in the United States until the H-1B takes effect.

Note: USCIS warns that is possible with this filing process, that even if selected, the filing window may fall both after the student’s OPT expires and the 60-day grace period ends. In this case, the student should seek appropriate legal advice.

  • Since there are risks if F-1 students travel internationally during the grace period, it is generally advisable to not leave the U.S., unless it is for an emergency visit.
  • A cap-subject H-1B petition will not be considered properly filed unless it is based on a valid, selected registration for the same beneficiary and the appropriate FY, unless the registration requirement is suspended.
  • The students should always refer to their Designated School Official if they are unsure about anything in the process, or before making any major decisions.  
  • Students are also advised to keep contacting their potential employers regularly on the updates of the statuses of the H-1B petitions that have been filed for them.

Complete, Update and Retain Your Form I-9s Digitally

Learn More