The H-1B Cap and F-1/H-1B “Cap Gap”

The H-1B cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year.  The F-1/H-1B “cap-gap” occurs when the status and work authorization of an F-1 student who has been approved for an H-1B visa expires in the current fiscal year before the start of their H-1B visa status on October 1 of the following fiscal year.  Under the prior regulation (and unchanged by this rule), an employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of the actual need for the beneficiary’s services or training.  As a result of this regulation, the earliest date that an employer may file an H-1B petition for consideration under the next fiscal year cap is April 1 for an October 1 employment start date.  If the H-1B petition and the accompanying change of status request are approved, a student may begin employment no earlier than October 1 under their new H-1B status.

Changes to the “Cap-Gap” Situation under the Final Rule Published on April 8, 2008

F-1 students engaging in Post-Completion OPT continue to maintain F-1 status until the expiration of the OPT.  “Under this rule, the F-1 status of students is automatically extended when the student is the beneficiary of an H-1B petition for the next fiscal year (with an October 1 employment start date) filed on his or her behalf during the period in which H-1B petitions are accepted for that fiscal year.” (USCIS)

If USCIS rejects, denies, or revokes the H-1B petition, the automatic extension is terminated.  If the H-1B petition filed on behalf of the student is selected, the student may remain in the United States and, if on Post-Completion OPT, may continue working until October 1, when the H-1B visa status would become effective.  The student may only benefit from this provision if he or she has not been in violation of their visa status.

For additional information, please visit "Questions and Answers: Extension of Optional Practical Training for Qualified Students".

For more information, contact
internationalprograms@coastal.edu