H-1B Cap-Gap Extension for F-1 Students and 24-month STEM OPT Extension

What is Optional Practical Training (OPT)?

OPT is temporary employment that is directly related to an F-1 student’s major field of study.

What types of OPT are available?

Pre-completion: An F-1 student may be authorized to participate in pre-completion OPT after he or she has been enrolled for one full academic year. The pre-completion OPT must be directly related to the student’s major field of study. Students authorized to participate in pre-completion OPT must work part-time while school is in session. They may work full-time when school is not in session.

Post-completion: An F-1 student may be authorized to participate in post-completion OPT upon completion of studies. The post-completion OPT must be directly related to the student’s major area of study and employment must be full-time.

For how long is OPT authorized?

A student is granted up to 12 months of OPT for each higher level of study, and some students may be eligible for an extension of up to 24 additional months (36 months total) (see information on 24-month STEM OPT Extension below). Note that any pre-completion OPT counts against post-completion OPT.  

What documents authorize OPT employment?

Students must initiate the process by requesting the Designated School Official (DSO) at their academic institution to recommend OPT. The DSO makes the recommendation by endorsing the student’s Form I-20 and by making the appropriate notation in SEVIS, the system used to track F-1 students. Students then file Form I-765, Application for Employment Authorization Document (EAD), with USCIS. If approved, USCIS will issue an EAD to the student. The student may begin pre-or post-completion OPT employment only after an application has been approved and an EAD has been issued.  For STEM OPT extensions, a timely filed EAD extension serves as proof of employment authorization for 180 days beyond the expiration of the original EAD card.

What is the H-1B cap?

H-1B immigration regulations limit to 65,000 the number of foreign nationals who may be issued a visa or otherwise provided H-1B status each fiscal year. Of those 65,000 H-1Bs, Free Trade Agreements carve out 1,400 H-1Bs for Chilean nationals and 5,400 for nationals of Singapore. An additional 20,000 H-1Bs are allocated to foreign nationals holding a master’s or higher degree from a US university.

When does the H-1B application period open?

United States Citizenship and Immigration Services (USCIS) starts accepting registrations for the H-1B lottery in March.  If selected in the lottery, an H-1B petition must be submitted between April 1st and June 30th for employment beginning on October 1st.

What is the F-1/H-1B cap-gap?

F-1 students are admitted to the US for “duration of status” (D/S), meaning that they may remain in the US for 60 days after the end of their program or after the duration of their employment authorization under OPT. Cap-gap occurs when an F-1 student’s status or work authorization expires after April 1st but before the H-1B becomes effective on October 1st. An F-1 student in a cap-gap situation would, in most cases, have to leave the United States and return at the time his or her H-1B status becomes effective on October 1st. Depending on when the student’s status expires, such circumstances could require the student to remain outside the United States for several months. The “cap-gap” provisions allow an extension of F-1 status, post-completion OPT, or the 60-day grace period, assuming the student is in one of those “statuses” on the date the H-1B petition is filed.

How does a student become eligible for cap-gap?

An H-1B petition must be filed and accepted on behalf of the student during the H-1B acceptance period while the student is in valid F-1 status (including during the student’s academic course of study, authorized periods of post-completion OPT authorization, and during the 60-day grace period). The petition must request a change of status from F-1 to H-1B to begin on October 1st of the year in which the application is made. Petitions requesting consular processing of the H-1B petition are not eligible for cap-gap. Students meeting these criteria will automatically have their F-1 status extended until September 30 unless the H-1B petition is denied, revoked or withdrawn.

What if a student does not qualify for a cap-gap extension?

F-1 students whose periods of authorized stay or work authorization expires before October 1 and who do not qualify for a cap-gap extension are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status for the dates reflected on the approved H-1B petition.

What is a 24-month STEM OPT extension?

Recipients of bachelor’s, master’s, and doctoral degrees in certain STEM (Science, Technology, Engineering, Mathematics) fields may be eligible for a 24-month extension of post-completion OPT after they have received an initial 12 months (for a total eligibility of up to 36 months).  Students who earn a subsequent degree in a qualifying STEM field are eligible for an additional 24 months of STEM OPT.

What are the STEM OPT eligibility requirements?

–     The student is currently on post-completion OPT
–   The student has earned a degree from a school accredited by a U.S. Department of Education-recognized accrediting agency
– The degree is listed on the STEM Designated Degree Programs List (https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf).   Note that not every degree in a STEM field qualifies.

What are the STEM OPT Employer Requirements?

– Must provide the school with a formal Training Plan attesting that:

– The employer is enrolled in E-Verify and in good standing;
– The employer has a valid FEIN;
– The employer has sufficient resources and trained personnel to provide appropriate training
– The student will not displace a U.S. worker
– The terms and conditions of the training will be consistent with those offered to the employer’s similarly situated U.S. workers in terms of duties, hours, and compensation.

– The employer must report material changes to the STEM OPT student’s employment to the DSO within 5 business days.

What documents authorize STEM OPT employment?

Students must initiate the process by requesting the DSO at their academic institution to recommend a STEM OPT extension. If the student and the employer meet the STEM OPT requirements, the DSO makes the recommendation by endorsing the student’s Form I-20 and by making the appropriate notation in SEVIS. Students then submit the endorsed I-20 to USCIS along with their EAD application and supporting documents to USCIS. The STEM OPT extension is adjudicated (approved) by the USCIS through the issuance of an EAD.

Can a student continue working past the expiration of their 12 month OPT EAD while a STEM extension is pending?

Yes, students whose EAD applications are received before their current EAD card expires will be able to continue employment while the EAD extension application is pending until they receive the final decision from USCIS on the application or for 180 days, whichever comes first.

What are the student's reporting responsibilities after receiving a STEM OPT extension?

Validating SEVIS Information

Report changes to their DSO within 10 days of the change, including:
     – Legal name
     – Residential or mailing address
     – Email address
     – Employer’s name
     – Employer’s address
     – Status of current employment

Report to your DSO every 6 months to confirm the information listed above, even if none of your information has changed.

Annual Self-Evaluations

Initial:  12 months after the STEM OPT start date; and
Final:    Recapping the training and knowledge acquired during the complete, 24 month training period.

If a student has an approved STEM extension EAD for Employer A, can the student work for Employer B if Employer B is not enrolled in E-Verify?

No, students working under a STEM OPT extension may only work for employers enrolled in E-Verify.

What happens if the STEM OPT extension request is denied?

If the EAD extension application is denied, the student will still have the 60-day grace period after expiration of the 12-month EAD card.