89 FR 10354 from DHS Extends H-1B Cap Gap Period
The Department of Homeland Security (DHS) has introduced a significant update with its final rule (89 FR 10354), extending the H-1B Cap Gap period. This rule automatically prolongs the duration of status and employment authorization for F-1 students who are beneficiaries of H-1B Change of Status petitions under 8 CFR 274a.12(c)(3)(i)(B) or (C). If the H-1B petition is properly filed and remains pending or approved, the student will remain authorized to work as an F-1 student with OPT until April 1 or until the validity start date of the approved petition, whichever is earlier.\
H-1B Visa Scenarios:
Imagine an F-1 student named Alex. Alex is currently studying in the U.S. and has applied for an H-1B visa to start working in the fiscal year beginning October 1, 2025.
Before the 89 FR 10354 rule change:
- Alex’s F-1 status and work authorization would automatically extend until October 1, 2025.
After the 89 FR 10354 rule change:
- Alex’s F-1 status and work authorization will now automatically extend until April 1, 2026, or until the start date of the approved H-1B petition, whichever comes first.
So, if Alex’s H-1B petition is approved to start on March 15, 2026, his F-1 status and work authorization will extend until March 15, 2026. If the petition is approved to start on May 1, 2026, his F-1 status and work authorization will extend until April 1, 2026.
This change gives F-1 students a longer automatic extension period, making it easier for them to transition to H-1B status without gaps in their authorization to stay and work in the U.S.
What is cap-gap?
The term “cap-gap” refers to the time period from the end date of an F-1 nonimmigrant student’s status to the start date of his or her H-1B nonimmigrant status.
There are two types of cap-gap extensions:
- Extensions of F-1 status only (without OPT): If a student is in F-1 status when you properly file an H-1B petition requesting an employment start date in the relevant fiscal year, but the student is not currently participating in OPT, they will receive a cap-gap extension of their F-1 status but will not be authorized to work until we approve the petition and their H-1B status begins on the validity start date of the approved petition.
- Extensions of F-1 status and OPT: If a student is in F-1 status when you file an H-1B petition requesting an employment start date in the relevant fiscal year and is currently participating in post-completion OPT, they will receive an automatic cap-gap extension of both their F-1 student status and their authorized period of post-completion OPT.
Imagine a student named Emma who is currently in the U.S. on an F-1 visa and is participating in Optional Practical Training (OPT). Emma’s employer files an H-1B petition for her, requesting an employment start date in the fiscal year beginning October 1, 2025.
Scenario 1: Extensions of F-1 status only (without OPT)
- Emma is in F-1 status when the H-1B petition is filed, but she is not participating in OPT.
- Emma will receive a cap-gap extension of her F-1 status, allowing her to stay in the U.S. until April 1, 2026, or until the validity start date of the approved H-1B petition, whichever is earlier.
- Emma will not be authorized to work until the H-1B petition is approved and her H-1B status begins.
Scenario 2: Extensions of F-1 status and OPT
- Emma is in F-1 status and is currently participating in post-completion OPT when the H-1B petition is filed.
- Emma will receive an automatic cap-gap extension of both her F-1 student status and her authorized period of post-completion OPT.
- This means Emma can continue working under OPT until April 1, 2026, or until the validity start date of the approved H-1B petition, whichever is earlier.
In both scenarios, the cap-gap extension helps Emma maintain her legal status in the U.S. while waiting for her H-1B petition to be processed.
Effective Date:
Immediate
Recommended Action
- Extended Cap Gap Period:The new rule changes the automatic extension end date from October 1 to April 1 of the fiscal year for which the H-1B status is being requested, or until the validity start date of the approved petition, whichever is earlier.
- Impact for F-1 Students:F-1 students with pending or approved H-1B petitions will have an extended period to maintain their status and work authorization without interruption.
- Employer Compliance:Employers must update their documentation and employment verification systems to reflect the new Cap Gap period. Both students and employers must stay informed about these changes and ensure all relevant processes and documentation are updated accordingly.
