Below is a summary of new issues the CIS addressed on its latest question and answer post on the H-1B Cap Gap.
The typical school year in college ends in May, thus most Optional Practical Training (OPT) cards of F1 international students end between May to July of the following year. Those who are lucky to have an employer petition them for an H-1B can start in April 1 for the employment start date of October 1. Thus, between the expiration of the OPT (May to June typically) up to the start date of the H-1B (October 1), there is a gap of a few months for international students.
The H-1B Cap-Gap resolved this issue by allowing foreigners in these situations to extend their F-1 status and OPT card until the start date of their H-1B employment, provided the H-1B Petition was filed by their employer prior to the expiration of their OPT cards or the 60-day grace period after. If the H-1B is filed before the OPT expires, then the OPT is extended and the beneficiary can work until the H-1B date of October 1 kicks in. If the H-1B though is filed after the OPT expiration but before the 60 day grace period, F-1 status continues but the beneficiary is not authorized to work.
A student who obtains the benefit of the cap-gap can obtain proof of this by going to their Designated School Official (DSO) with a copy of the H-1B receipt notice. The DSO would then issue a new I-20 evidencing continued F-1 status for the beneficiary. This I-20 though, unlike those issued while one is a full-time student, could not be used to reenter the United States during the cap-gap period. One who travels abroad while on cap-gap could not reenter as an F-1 student, but instead needs to apply for an H-1B visa at the US Consulate abroad before returning.
For international students who have received science, technology, engineering, and mathematics (STEM) degrees and are working for employers enrolled in E-Verify, and who have received an initial OPT card, they can apply for a 17-month extension. Those who would benefit from STEM, who are in the middle of the cap-gap period, can still apply for a 17-month extension of their OPT.
If the beneficiary is working on an extended OPT due to the cap-gap for the H-1B petitioning employer, and that employer lays off the beneficiary and withdraws the H-1B Petition while the extended OPT is still valid, the student must show the DSO a copy of the CIS acknowledgement of the withdrawal, who will then ask SEVIS to provide a data fix. The international student can continue to work while the data fix is ongoing. But if the CIS does not receive the withdrawal prior to the H-1B effective date, then the student must file an F-1 reinstatement and wait for approval before resuming employment. Same thing goes in a scenario where the withdrawal occurs after October 1, the student will need to apply for reinstatement and wait until this is approved before continuing to work.
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