F-1 Foreign Students & the H‑1B Visa

An F-1 visa holder is a foreign student who is enrolled in a full-time degree or non-degree academic program in the United States and who is in good standing. A foreign student must maintain a foreign residence and demonstrate his or her ability to pay tuition and expenses in the United States. An F-1 visa is issued for an indefinite period of time (duration of status) and it expires once the student no longer maintains full-time status.  F-1 degree students may be eligible for work authorization called practical training.

The H-1B Cap-Gap

Prior to the most recent Optional Practical Training (OPT) rules, when a gap occurred between the expiration of the F-1 OPT’s status and work authorization and October 1st , the F-1 student would have to leave the country and reenter on October 1st of that fiscal year.

Example of Cap-Gap from F-1 to H-1B under the Old Rules:  
An F-1 student’s optional practical training is expiring on July 15, 2010.

The student would not be able to change status to H-1B and remain in the US, since her 60-day grace period would expire before October 1, 2010.  If the F-1’s OPT was expiring on August 30th, then she could change status

Old Rule: No Employment during Grace Period

If the F-1 was granted a change of status to H-1B but her OPT expired before the H-1B start date of October 1st , the F-1 was prohibited from working between the expiration of his OPT and the H-1B start date.
For example: OPT expired on August 15, 2009

Rules on OPT Extension and Cap-Gap Fix

  • Provides automatic extension of stay and work authorization until October 1st of the year the visa is requested for all F-1 students with a gap
  • Extends OPT from 12 to 29 months for F-1 students with a degree in science, technology, engineering or math (STEM) who are employed by a company in E-Verify

Requirements for Cap-Gap Extension of Status and Work Authorization

  • H-1B petition timely filed (during the course of F-1 study, post-completion OPT & 60 day grace period
  • Requested change of status
  • October 1st start date
  • No violations of F-1 status
  • Terminates upon the rejection, denial or revocation of the H-1B petition

Cap-Gap Extension and Employment

An F-1 student who has completed post-completion OPT but is in the grace period on April 1st will obtain an automatic extension of status. However, employment authorization is not extended automatically.

For Example: OPT expires February 15, 2010 and H-1B petition filed April 1, 2010

Rejection, Denial or Revocation of the H-1B petition

If USCIS denies, rejects or revokes an H-1B petition for an F-1 student covered by the cap-gap extension, the student will have the 60-day grace period (from notification of denial, rejection or revocation) before the student must depart the US. immediately

No Travel Abroad with Immediate Reentry for Expired OPT EADs

If the F-1 student’s OPT employment authorization has expired and the student is here pursuant to the automatic extension, then if she travels abroad during this time, she cannot reenter until she obtains an H-1B visa abroad and it is October 1st (she may be able to enter slightly earlier).