Understanding “cap gap” and the “cap gap extension”

If you are considering H-1B status, two concepts you should know, if not already, are “cap gap” and the “cap gap extension.” Both of these terms relate to the timing of the end of your optional practical training (OPT) and the start of you cap-subject H-1B job, assuming the H-1B cap is full during the current fiscal year.

For the moment, let’s ignore the 60 day grace period that follows the end of your OPT. Also, let’s consider only one-year OPT programs.

Let’s say that you graduated in May 2012, and then began an OPT that will end on May 31, 2013. Because your boss didn’t know you well enough to file H-1 for you for October 2012, and because the cap is full until September 30, 2013, the boss now decides to file H-1B to start in the next fiscal year, beginning October 1, 2013. A smart boss would file at the earliest possible date, which is April 1, 2013.

Here is the problem: as you must know, you are required to maintain valid status at all times while in the U.S. However, your OPT will end on May 31, 2013, but your H-1B job doesn't start until October 1, 2013. In other words, you will have a gap of four months during which you have neither F-1 status nor H-1B status—that is, a gap in which you will have no status at all. In the absence of any special provisions, a person facing such a situation, in order to avoid status problems, would most likely have to leave the U.S., perhaps to the home country, then return later to begin the H-1B job (keep in mind that such a person is permitted to enter the U.S. up to ten days prior to the start of H-1B). But such an alternative, while permissible, can be expensive and bothersome. This situation is what is known as the “cap gap.”

To address this situation, the government implemented a “cap gap extension.” This arrangement solved the “gap” between the end of OPT and the beginning of H-1B. In order to qualify for this extension, an H-1B petition had to be timely filed. That is, it must be filed on or before the end of the OPT. Of course, it also had to be filed on or after April 1, and not before April 1, because the cap is full for the current year.  The petition also must be nonfrivolous, that is, it must have a reasonable basis for being approved.

If such a filing is made, then even though OPT ends while the petition is being reviewed, no status problems arise. If the petition ultimately is approved, then the person’s F-1 status and the person’s work authorization is automatically extended until September 30. Therefore, the person will have valid status even during the former gap, and will have work authorization during the former gap. Then, the day after September 30, which is October 1, the person would begin in H-1B status.

Notice that in order to gain the advantage of cap gap extension, the employer must file the petition prior to the end of OPT. But at the same time, the employer must wait until April 1 or later to file the petition. Therefore, OPT must end after April 1.

If, on the other hand, a person’s OPT ends prior to April 1, some other issues arise, and I will address them in another post.

I hope this information is helpful. You are welcome to contact me at csun@calvinsun.com