If you are reading this post on the “Cap-Gap” rule, then you most likely are familiar with terms such as H1B, F-1, and OPT.  If you are not familiar with these terms, explanations can be discovered elsewhere on this internet site.  As a point of clarification, this post has nothing to do with the green card method.  The H-1B status is a temporary employment status whereas the green card is a permanent employment status. 

The “cap gap” normally refers to the period of time between when your optional practical training (OPT) ends and your H-1B takes effect.  In the past, it was rather frequent for your OPT to expire more than 60 days just before October 1st, the date that the H1B takes effect, and therefore left you with unlawful presence in the course of that period.  The “cap” on the limited number of H-1B visa numbers issued each and every year developed a “gap” in the prospective employee’s status thus we have the term Cap-Gap.  The new cap-gap regulations fix this.

This cap-gap extension automatically becomes successful when the H-1B cap has been reached and the student has an H-1B petition filed on his/her behalf during the acceptance period.  This rule does not apply to all F-1 students, only those with F-1 OPT status and work authorization incident to status while an H-1B application is filed and pending.  For example, if a student’s OPT expires on 6/15/09 (and his or her EAD card expires accordingly), and if the student has a valid H-1B application that has been accepted and is pending with USCS, his or her status and work authorization is automatically extended until USCIS makes a choice on the H1B. 

If the H-1B application is rejected or denied on the merits, the status and work authorization would end on the date of rejection and/or denial. If approved nonetheless, the student’s OPT status and work authorization is valid until the beginning of the next FY, which constantly begins on October 1 of each and every year.

F-1 academic students who receive science, technologies, engineering, and mathematics (STEM) degrees and who obtain an initial grant of post-completion OPT, could apply for a 17-month extension for a maximum of 29 months of post-completion OPT.

To be eligible for the 17-month OPT extension, a student ought to have received a degree in one of the following fields: Pc Science Applications, Life Sciences, Actuarial Science, Mathematics, Engineering, Military Technologies, Engineering Technologies, Physical Sciences, Biological and Biomedical Sciences, and possibly other people.

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