If someone under F-1 OPT is applying for H-1B, and the OPT is about the run out, what will happen?
The “cap gap extension” is a rule specifically designed to help OPT holders in this situation. In short, so long as an H-1B petition is filed before a student’s F-1 status expires, the student can enjoy an automatic extension of their F-1 until their H-1B status begins on October 1.
The earliest date H-1B petition may be filed is April 1 each year. Employer don’t often file the petitions that quickly. If the F-1 holder’s status expire on or shortly after April 1, they may wish to speak with their employer to work out an appropriate timeline.
An F-1 holder remains in status if they are still within the OPT period. But they also can be in status in the 60-day grace period after OPT ends.
Remember, OPT can still be in effect if you are unemployed. Most F-1 holders have a total of 90 days of unemployment period before OPT expires. Those who have the STEM extension have a total 150 days of unemployment. This unemployment period is cumulative. If an F-1 holder was unemployed for 45 days, then resumed work, they would only have 45 days of unemployment period left before OPT expires.
The extension automatically applies once the H-1B petition is submitted. F-1 holder will not need to apply for a new EAD. If they wish to obtain proof of this extension, they should work with their DSO to update the I-20.
Careful with traveling. Leaving before the H-1B petition is approved would constitute abandonment.
What if I can’t file the H-1B before I am out of F-1 status? They will need to depart the U.S. and re-enter after H-1B petition is approved and they obtain an H-1B visa from U.S. consulate.
Why if your H-1B petition is denied? If F-1 status has ended by the day of the H-1B denial, most F-1 holders will have a 60 day grace period to leave the United States. However, if they are still in F-1 status they can continue to stay in the U.S. under F-1. Those STEM OPT holders with enough time remaining may even reapply for H-1B next year.
If H-1B was denied because the F-1 holder violated their status or any misrepresentation or fraud, then the 60-day grace period does not apply. The F-1 holder must leave the country immediately.
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