International Student Services

If the 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 of the following fiscal year, 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 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.

Students and employers should note that this permission to remain in the U.S. in F-1 status and continue working under OPT in this particular situation is automatic, pursuant to the new regulation from ICE. There is no new application for an Employment Authorization Document (EAD). Note: This permission applies to all F-1s on OPT whose employers filed a timely H-1B petition for the following fiscal year, regardless of the student’s field of study.

Cap-gap extensions do not provide F-1 students with a new OPT card. DHS advises that students with an expired OPT card are not eligible to re-enter the U.S.

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 (at the same school or by transferring to a new school).

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