Your OPT ending date and its effect on your “cap gap” options

Many people who are in their optional practical training (OPT) phase, following graduation, find that they have a gap of a few months between the end of OPT and the beginning of their H-1B job. This situation, known as “cap gap,” arises because of two issues, namely

•           many OPT programs end in winter or spring
•           during the federal October 1 – September 30 fiscal year that the OPT expires, the H-1B cap is already full

Therefore, assuming the person is subject to the cap, and assuming the current fiscal year cap already is full, and assuming the person’s OPT subject is non-STEM related, then   the person cannot work in H-1B during that fiscal year, but instead must wait until the next October 1, assuming his/her petition was or will be approved.

Therefore, the cap gap often presents a challenge as far as maintaining both legal status as well as work authorization under the person’s OPT.  

Depending on a person’s OPT ending date, a person can have one of three situations with regard to maintaining status and work authorization, via cap gap relief, between the end of OPT and an October 1 H-1B start:

1.       The person can maintain both status and OPT work authorization

2.       The person can maintain status, but not OPT work authorization

3.       The person can maintain neither status nor OPT work authorization

Let’s look at each situation in more detail.

1.       Ability to maintain both status and OPT work authorization

This person has the best situation. In American English, one could say this person, alternatively, “is on Easy Street,” or “is in the catbird seat,” or “has it made in the shade.”

The person has this situation because his or her OPT ends on or after April 1, the beginning date for filig H-1B petitions for the following October 1 (see http://yi2min2.blogspot.com/2012/12/the-importance-of-april-1-and-october-1.html for an explanation of this April 1 date). Therefore, this person is eligible for the cap gap extension. In this situation, the employer must file a nonfrivolous petition on or after April 1 and on or before the expiration of OPT, and specify an October 1 H-1B start date. Also, the petition must ultimately be approved. As a result, the person will have F-1 OPT status, as well as work authorization, automatically extended to September 30.  In this way, the person has continuous lawful status and OPT work authorization until the end of the fiscal year, at which point the person’s H-1B status would begin.

2.      

Ability to maintain status, but not work authorization

This person has a second-best situation. His or her OPT ends prior to April 1, but the grace period ends on or after April 1. As a result, this person is eligible for a modified cap gap extension. The employer, as above, must file a nonfrivolous H-1B petition on or after April 1, and on or before the end of the person’s grace period. Assuming that the petition ultimately is approved, the person will have an extension of F-1 status from the end of OPT until the beginning of the next fiscal year, October 1, at which point H-1B status would begin.

However, because the person’s OPT period ended prior to the April 1 earliest filing date, the person cannot receive a corresponding extension of work authorization. This person, therefore, may lawfully remain in the US until the start of H-1B, on October 1. However, the person must stop the employment that was based on OPT.

3.     

  Ability to maintain NEITHER status nor work authorization

This person, unfortunately, has the worst situation of all. Specifically, not only does this person’s OPT end prior to April 1, but so too does the grace period. This person is ineligible for ANY form of cap gap relief. The person cannot receive an extension of OPT work authorization, nor can the person receive an extension of lawful status. Rather, the work authorization ends when the OPT ends, and the F-1 status ends when the grace period ends. This person can leave the US before the end of the grace period, seek consular processing for an H-1B visa, then re-enter later on that visa (keeping in mind that entry can occur up to 10 days prior to start date).  Otherwise, the person will need to find some other lawful status in order to stay in the US.

I hope this information helps you. Should you have questions, you may reach me at csun@calvinsun.com.