When do I qualify for a “Cap Gap” extension?

While we’re in the midst of H-1B filing season, individuals in student status often have questions about their work authorization, their status expiring, and when they qualify for the policy known as “cap gap.”

As background, a “cap gap” extension for someone in student status essentially extends their status, and usually work authorization, if they have been selected in the H-1B lottery (the “cap”) from the time their student status or work authorization ends to the time that their H-1B status begins (the “gap”).  In order to qualify for this extension of status and work authorization, one needs only to have their H-1B change of status petition timely filed for them prior to the expiration of their OPT and/or student status.

Importantly, the cap gap extension will only extend the status and work authorization that is in place at the time the timely filed H-1B petition is filed.  If the student is in valid OPT and has work authorization, that work authorization and status will extend to the October 1 start date.  If the OPT expires, however, and only the student status remains, the person’s student status will be extended, but their work authorization will not be reinstated.

If the H-1B change of status petition was to be denied, if it was to be withdrawn, or if it was to be approved for consular processing rather than as a change of status, the cap-gap extension is considered terminated, and the student will then, in most cases, enter the standard 60 day grace period to depart the United States.

The bottom line is as long as your change of status H-1B petition is filed before the expiration of your OPT or your status, that will automatically be extended to September 30^th so that you can smoothly transition into H-1B on October 1^st.