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The F1 Cap gap means that you can stay in the USA while your H1B Change of status application is pending approval.
USCIS allows an F-1 student who has filed a cap-subject change of status to H-1B, to have his or her F-1 status and any current employment authorization (OPT) extended up to Sept. 30.
This is known as filling the “cap-gap”, which actually is like a bridge to fill the “gap” between the end of F-1 status and the beginning of H-1B status.
- The “cap-gap” period starts when an F-1 student’s status and work authorization expires.
- The OPT is automatically extended through Sept. 30 if the H1B application has been filed.
- The H1B should have the requested start date as Oct. 1 of some year.
- Cap-Gap ends if the H1B application is denied before Oct. 1.
Cap-Gap occurs because an employer may not have the option of filing H1B for the F-1 student at the time his/her OPT EAD is officially expiring.
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H1B is Denied
H1B can be denied in lottery quota cases and your options to stay in the US vary in different scenarios.
The cap-gap ends on Sep 30 every year and then you get a 60-day grace period. This means that you have until Nov 29 to stay legally in the US.
Hear what attorney Emily Neumann has to say about options after the H1B lottery is denied while you are in the cap-gap period:
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If your H1B lottery application was denied between Oct 1 to Nov 29, you may still continue to be on F1 status.
If the H1B application is denied after Nov 29, which means that your grace period has also expired, then you cannot stay in the US.
The only way you can continue to stay in the US is if you have filed any other application like a change of status from F1 to H4 before Nov 29.
The F-1 student can stay in the USA while the change of status petition is pending without adding unlawful presence, provided they do not work without authorization.
You cannot refile an H1B after the denial in the cap-subject lottery.
The only way is to file a new H1B in next year’s H1B season which starts on April 1.
You are not counted in the cap-subject lottery if your H1B application was selected in the lottery but was later denied.
You can file a new H1B again in next year’s cap-subject lottery process.
If an F-1 student with a pending change of status h1B petition has other work authorization (such as an I-765 with valid dates) that is valid even after Sept. 30, he/she can continue to work.
The chances of H1B approval after you file an appeal with USCIS are low.
Statistics show that approval chances are between 3 to 10% based on the H1B denial reason and your employer’s paperwork.
You get 33 calendar days to file an H1B denial appeal.
If a cap-gap H-1B is pending on or after Oct. 1, the F-1 student is no longer authorized to work under the cap gap.
They should stop working on Oct 1 to avoid issues.
If the H1B petition is not selected in the lottery, or if the petition is denied after lottery selection, the cap-gap period terminates automatically.
H1B applications filed with a change of status are eligible for cap-gap OPT extension.