OPT Cap-Gap and Work Authorization Beyond September 30th Questions

Question: What do I do if I was picked in the H-1B lottery but my OPT ends before October 1st?

Answer: When an H-1B Petition that is timely filed (April 1 + 1st 5 business days of April) requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin when the authorized OPT period ends and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Please note: F-1 students who have entered the 60-day grace period are not employment-authorized.  If an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Follow Up Question: What if my case is not adjudicated before September 30?

Answer: Cap-Gap will only extend work authorization until September 30. If a case has not be adjudicated by September 30, the F-1 Student must stop working. The F-1 Student is likely authorized to remain in the United States while the H-1B Petition is pending. To avoid a lapse in work authorization, an H-1B Petition may be upgraded to premium processing. By upgrading to premium processing, the USCIS must adjudicate a petition within 15 days. Certain exceptions apply to this 15-day rule, such as issuance of a Request for Evidence or Return of Fee for Inability to Premium Process.


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