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If a cap-subject employer of an F-1 student on OPT files a timely H-1B petition (requesting a change of status within the U.S.), and requests an employment start date of October 1, that student is permitted to continue working and may remain legally in the U.S. in F-1 status until the H-1B petition is approved, rejected, denied, or revoked. If the H-1B petition is approved, the immigration status change will occur on October 1.
- The cap-gap work authorization continuation only applies in cases where the H-1B petition is filed before the EAD expires. If the EAD expires before the H-1B petition can be filed, but the student is still within the 60-day grace period, that student may remain in the U.S. in F-1 status until a decision on the H-1B petition is reached, but may NOT be employed.
- F-2 dependents (spouses and minor children) are eligible to remain in F-2 status during this time as well.
- Cap-gap extensions do not provide F-1 students with a new EAD cards. However, the OIS at UMB should issue an additional I-20 for you. DHS advises students with an expired EAD card not to travel out of the U.S. as they are not eligible to re-enter the U.S. and USCIS may consider the application to change from F-1 to H-1B as abandoned and will deny the change.
- If the H-1B petition is rejected, denied or revoked, the OPT cap-gap authorization will end 10 days later, and the student has a 60-day grace period to depart the U.S., change status, or begin a new program of study.
- If you have been sponsored for H-1B status by a cap-subject employer, please send a copy of your new H-1B I-797 approval notice to the OIS as we will need to print a new I-20 for you--extending your F-1 status through September 30th of that year.
Traveling while Employed on Cap-Gap Extensions
Traveling outside the U.S. may interfere with the processing of your H-1B petition. Please consult with your employer or employer's immigration counsel regarding all travel plans before departing the U.S.
Some information is available on the website of Fragomen, Del Rey, Bernsen and Loewy, LLP.