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Can I Study While My H1 Is Pending?

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H-1B and OPT Cap-Gap Extensions

The H-1B

To find out more nigh the H1-B, see below and attend one of our H-1B Workshops or accept a look at the H1-B FAQ page for full general H1-B information . See the USCIS H1-B website for total information on H1-Bs.

The H-1B status permits temporary employment (up to half-dozen years) in the U.S. for people who have a minimum of a Bachelor's degree in the same or a related field as the chore offered. The employer must submit a petition to the U.S. Citizenship and Immigration Service (USCIS) for blessing of the H-1B position. Petitions are approved on a first come, offset served basis. The H-1B has an almanac numerical limit (cap) of 65,000 new statuses/visas each fiscal twelvemonth. An additional 20,000 petitions filed on behalf of beneficiaries with a chief's degree or college from a U.S. institution of higher instruction are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher instruction or its affiliated or related nonprofit entities, a nonprofit research arrangement or a government inquiry organization are not subject to this numerical cap. For further information most the numerical cap, see the USCIS H-1B Cap Flavor page.

In 2022 USCIS implemented an electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-discipline petitions must first electronically register and then pay pay a registration fee to exist considered for option for H1-B filing. The H-1B pick process will so be run on properly submitted electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. For more information on the H1-B registration process and timeline, see the USCIS H1-B Electronic Registration Process website.

The OPT Cap-Gap Extension

A Cap-Gap extension is a regulatory provision which extends an eligible F-1 pupil's status to span the gap between the end of F-one OPT or OPT STEM work authorisation and kickoff of H-1B status, thereby allowing the pupil to remain in the US during the "gap."

Basics & Eligibility

What is the H-1B Cap?

The H-1B cap is the limit on the number of H-1Bs allowed each financial year.* Currently, the cap is 65,000. The fiscal year begins on October 1 when a new batch of the 65,000 H-1Bs becomes available.20,000 beneficiaries of H-1B petitions filed for new employment or for a alter of employer are exempt from being counted confronting the H-1B cap if the beneficiary has earned a master'due south degree or higher from a U.Southward. institution of higher pedagogy.  Meet theUSCIS H1-B website for the more data.

H1-B Registration & H1-B Filing
Employers wanting to file a cap-subject H-1B petition must first submit registrations during the registration menstruum(generally during March) , naming and paying a $10 registration fee for each individual they hope to file for. USCIS will and then deport a lottery of all registrations received, and notify employers which beneficiaries have been selected by March 31.  Later notification, the employer will and so accept a xc-day flow beginning April 1 in which to file a complete H-1B petition. An employer may not file a cap-subject H-1B petition for any beneficiary whose registration was not selected in the registration lottery. For current timelines see the USCIS H1-B Electronic Registration Process website.

*The cap does non use to all H-1B visas. (The cap does not affect H-1B petitions at UC Berkeley.) An individual may be exempt to the H-1B cap if they are employed or have received an offering of employment at a qualifying establishment: an establishment of higher education, a nonprofit entity related to or affiliated with an establishment of higher education, a non profit research organization or a government organization. Berkeley International Office cannot advise on an employer's cap status. Please cheque with your individual employer and their legal counsel.

Eligibility for the OPT Cap-Gap Extension

The Cap-Gap extension is available to students who, are either on approved F-1 OPT or Stem OPT or in their 60-day grace period and have a pending or approved modify-of-condition for an October 1st cap-subject area H-1B petition with USCIS which was filed prior to the expiration of their OPT/Stalk or lx-twenty-four hours grace catamenia. For more informaiton, see the USCIS Cap Gap webpage.

What does it mean to have filed for an Oct. 1 Cap subject H1-B petition prior to the expiration of their OPT/STEM or 60-mean solar day grace catamenia?
Delight sympathize that the H1-B registration process is dissimilar than the H1-B Change of Status filing process! To qualify for the F-1 OPT Cap Gap Extension the employer must take submitted the Course I-129 requesting Modify of Condition and an employment starting time date of October i, and that I-129 filing MUST BE RECIEVED by USCIS before the expiration of the OPT/STEM EAD or 60-day grace menstruation.

Those filing for H-1B via consular processing Practise NOT qualify for the Cap-Gap Extension. Y'all must ostend with your employer if the H-1B will be filed as a "Change-of Status" or via "Consular Processing." You may be eligible for one of two Cap-Gap extension benefits:

  • If the employer filed your H-1B (change-of-status) petition and it is received by USCIS prior to your postal service-completion OPT expiration date, you lot authorize for an extension of your OPT employment authorization.
  • If the employer filed your H-1B (change-of-status) petition and it is received by USCIS after your mail-completion OPT expires but during your lx day grace period following OPT, your F-one status and permission to remain in the U.s. are extended but yous are non eligible to work.

Apply for an OPT Cap-Gap Extension I-twenty

Petitions that have been filed and receipted:If your H-1B (I-129 including alter-of-condition) petition has been filed by your employer and receipted by USCIS, you lot are eligible for an automatic Cap-Gap extension I-xx through September 30th. To request this Cap-Gap extension I-20, access the " H-1B Cap Gap Extension I-20 Request " in your SSU Hub. Y'all volition exist asked to upload the following:

  • Your 12 Calendar month EAD or STEM EAD bill of fare, if you haven't already
  • a copy of the I-797 Receipt or Blessing notice from USCIS

Yous will bespeak your preferred Delivery Method (Express Mail, USPS Airmail or Pick Upwardly). This volition take united states of america nigh five business days to process.

Petitions that have been filed just NOT receipted:  Currently, SEVIS does not allow Cap Gap Extensions for applications that have not been selected for processing and receipted.

How long will the OPT Cap-Gap Extension I-20 request take?

Berkeley International Office volition submit the Cap-Gap request to SEVIS within five (v) business organisation days of the receipt of your request class in SSU Hub (come across above), provided all information above is accurate and complete. Sometimes the Cap gap does not appear in the SEVIS tape and Berkeley International Office must make a request to SEVIS to correct the record. This tin cause delays in processing the asking that are out of BIO's command. (Run into below in Problems and Issues.)

How do I know if I have a Cap Gap Extension on my I-20? What does information technology wait like?

Page ii of your I-20 volition have 2 singled-out changes:

  • Under EMPLOYMENT AUTHORIZATIONS on page 2 of your I-xx, your current OPT or Stem Extension volition now have a  30 SEPTEMBER end date.
  • Your I-20 will as well include a special notation in the CHANGE OF STATUS/CAP-GAP EXTENSION department on page 2, showing details near your H1-B and H1-B receipt number and Comments stating "F-one status and employment authorization for this pupil take been automatically extended to September thirty, 2018. The student is authorized to remain in the United States and continue employment with an expired employment authorization document. This is pursuant to viii CFR 214.two(f)(5)(iv) and 8 CFR 274a.12(b)(6)(four), as updated Apr 8, 2008 in a rule published in the Federal Register (73 FR 18944). Additional data about the automated extension can be institute on the Educatee and Exchange Visitor Program Website at www.water ice.gov/sevis."

What if my OPT expires before my employer files for the H1-B Modify of Status? Will the preliminary or automatic Cap-Gap Extension extend my OPT?

Although your F-i condition would be extended if you are in your 60-solar day grace menstruum when the petition is filed, your OPT employment authorization period has expired, and the Cap-Gap does not serve to reinstate or retroactively grant employment authorization. Your legal status to remain in the U.S. in F-one condition is extended, but you are required to stop working until your H-1B goes into issue on October 1st ( or at any date your Change of Status becomes effective). Consult with your BIO advisor and the legal counsel working on your H1-B application to determine your best strategy and if a Cap-Gap is really the right option for yous.

Tin can I travel during a Cap-Gap Extension period and still return with my OPT I-20 and EAD?

Please notation, traveling exterior the US may interfere with the processing of your H-1B petition. Berkeley International Office strongly advises students to consult with their employers and the legal counsel processing the H-1B regarding all travel plans before departing the US. Berkeley International Office cannot suggest straight on the bear on of travel on your individual H-1B application. See the USCIS Cap Gap webpage for more than information.

In general, during the Cap-Gap catamenia, you can travel and re-enter the U.S. if:

  1. You lot have a valid F-one visa at the fourth dimension of re-entry
  2. You lot have an I-20 that reflects the Cap-Gap benefit and has a travel signature (no older than half-dozen months)
  3. The H-1B petition filed on your behalf has been approved earlier you travel.

Per Department of Homeland Security policy, an applicant who departs the U.South while a alter of status application is pending is considered to take abased the awarding.

Tin can I file for an H-1B and a STEM OPT Extension at the aforementioned time?

Yep, but filing these applications meantime tin sometimes cause complications in your SEVIS record. You can apply for a STEM OPT Extension before  your OPT EAD expires. If you are planning to file for an H-1B and Stem at the same time, you should submit your OPT Stalk application on fourth dimension, before the original 12 month EAD expires.

You lot should also be mindful to take actress steps when filing for your Stem Extension and standing your F-ane status:

  • Before requesting a STEM I-20, bank check with your employer and the legal counsel working on your H-1B and confirm that your employer recommends that you file STEM/H-1B meantime at this time.
  • When submitting your STEM OPT Extension include the STEM/Cap-Gap Letter of the alphabet if a Cap-Gap appears on your OPT Stem I-20
  • If no Cap-Gap currently appears on your I-20, but your employer has filed for the H-1B include the Stalk/H1B Alphabetic character
  • Update BIO as soon as possible regarding any Withdrawal or Deprival of your H1-B petition. These actions may have an impact on your SEVIS record, and a BIO adviser volition need to review the record to see if whatsoever corrections need to be fabricated.
  • If your H-1B is approved, the Stem Extension (or awaiting STEM Extension) will end on the date your H-1B becomes effective. Report the end of your OPT via the SSU Hub. Select "Report Early OPT/Academic Preparation Completion" and provide your I-797 Approving Notice From USCIS. Your F-1 record will be completed after the effective appointment of your H-1B.

Can I also apply for a Stem OPT Extension before my Cap Gap menstruum starts? (BEFORE my OPT EAD expires)

Aye, yous tin apply for a STEM OPT Extension before your OPT EAD expires. If y'all are planning to file for an H-1B and STEM at the same time, you should submit your STEM OPT awarding on fourth dimension, before the original 12 month EAD expires.

You lot should besides be mindful to take extra steps when filing for your STEM Extension and continuing your F-one status:

  • When submitting your STEM Extension include the STEM/Cap Gap Letter
  • Update BIO as soon as possible regarding any Withdrawal or Denial of your H-1B petition. These actions may take an impact on your SEVIS record, and a BIO adviser volition need to review the tape to see if any corrections need to be fabricated.
  • If your H-1B is approved, the STEM Extension (or awaiting STEM Extension) will finish on the date your H-1B becomes constructive. Report the finish of your OPT via theSSU Hub. Select " Report Early OPT/Academic Training Completion " and provide your I-797 Blessing Notice From USCIS. Your F-1 record volition be completed after the effective date of your H-1B.

Tin I apply for a STEM OPT Extension during my Cap Gap period?  (AFTER my OPT EAD expires, but BEFORE the Cap-Gap extension expires Sept xxx)

Berkeley International Office DOES NOT suggest submitting a STEM OPT Extension awarding after the expiration of your original 12 month OPT EAD, even if you accept a Cap-Gap Extension on your I-20 which extends your OPT until Sept 30.

USCIS states on its Cap Gap website website that "Students who are eligible for a cap-gap extension of mail-completion OPT employment and F-1 condition may utilise for a Stalk OPT extension during the cap-gap extension period. However, students may not utilise for a Stalk OPT extension one time the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the threescore-day grace flow."  However, BIO'southward current experience is that that STEM applications submitted after the stop of the OPT EAD, only during the Cap-Gap period bear a very high adventure of deprival. Additionally, for those applications that are canonical, if the H-1B is later denied, it could cause serious issues the Stalk OPT Extension and F-i SEVIS record. In most cases, the H-1B denial volition result in the catastrophe of the STEM Extension and F-1 SEVIS record.

I am already approved for a Stalk OPT Extension, and my STEM OPT Extension is expiring. Tin can I qualify for Cap-Gap Extension to get-go afterward my Stem OPT expires?

Yes, Stem extension holders may qualify for the Cap-Gap Extension if they encounter eligiblity requirements. See above for Cap-Gap Eligiblity.

My employer filed for my H-1B and the petition has been approved. Should I file for the Stem Extension if my H-1B is already Approved for Oct. ane?

Yous may not demand a STEM extension if your OPT is ending and your H-1B has already been approved. If this is your situation, cheque with a BIO adviser before submitting your STEM asking. An adviser volition need to review your record and H-1B approving notice.An adviser will decide whether a Stem Extension or Cap-Gap I-twenty is improve for you.

Earlier contacting a BIO adviser, make sure that yous have 1) uploaded a copy of your OPT EAD carte to the SSU Hub and 2) have your H-1B I-797 Blessing Notice From USCIS.

Bug & Problems

Cap-Gap not appearing in SEVIS System/Cap-Gap Information Set up

If Berkeley International Office checks your SEVIS tape and finds that Cap-Gap has not automatically been applied, and so we will take to request a information fix from the SEVIS Assist Desk-bound. In these cases, we will have to submit a copy of your EAD card, your H-1B Receipt Notice or your H-1B Approving Notice. This volition often cause a delay in the processing of your Cap-Gap I-20, and y'all will exist notified if there is a filibuster of more than than the five business day processing time.

What if my original OPT expires and my Cap-Gap Extension data fix is even so awaiting with SEVIS Help Desk?

Your post-completion OPT is automatically extended, whether yous use for the Cap-Gap extension I-20 or not. Therefore, you are allowed to proceed working with your employer while the Cap-Gap extension information set up is pending. Too, keep in mind that the 90-day unemployment rule remains in result during your automatically extended work authorization. During this time y'all must go along to update Berkeley International Role of whatsoever changes in your employment or address via our Student SEVIS Update (SSU) Hub form.

What happens if my H-1B is rejected, withdrawn, or denied later applying for the Cap-Gap Extension?

If the student's H-1B is not selected, or is withdrawn, denied, or revoked the student volition have the standard lx-twenty-four hours grace catamenia from the date of the rejection notice to prepare for and depart the U.S. In some cases it may be possible to apply for an I-twenty transfer during the grace menstruation, but this is often not available. Notwithstanding, if a denial is based on a discovered status violation, no such grace menses exists and the student must exit the U.S. immediately.

What if a Cap Gap appears in my tape, but my employer is not subject to the Cap? Or my employer filed the H-1B for "consular processing"?

You are not eligible for the Cap Gap Extension if your employer is not cap-subject, or if your employer files for your H-1B via consular processing. If a Cap-Gap appears in your F-one tape and you are in one of these categories, please contact Berkeley International Office equally soon as possible. An adviser will need to submit a asking to SEVIS Helpdesk to remove the H-1B or Cap-Gap information from your F-one record. If we are not able to remove the incorrect H-1B data from your record, your F-ane record may accidentally consummate.

Incorrect consular processing H-1B notations are quite common, as SEVIS sometimes has difficulty identifying whether the petition is a Modify of Condition H-1B or a consular processing petition.

What if my regular Cap Gap Extension until Sept. thirty expires and my H-1B is not yet approved?

If your H-1B has not yet been accepted for processing and receipted, BIO cannot extend your OPT past September 30 unless yous tin can qualify for and submit a timely filed OPT STEM Extension. If your H-1B is non approved by Sept. xxx, your F-1 employment authorization volition finish. You volition so accept the standard 60-twenty-four hour period grace flow from the Cap Gap end date of Sept thirty to i) depart the U.Due south., 2) use for an I-20 transfer, or three) to piece of work with your employer and immigration legal counsel regarding your current H-1B Alter of Condition and options to remain in the U.S.

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Source: https://internationaloffice.berkeley.edu/students/employment/cap-gap

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