Students Should Not Travel During Cap-Gap Period

Originally published May 5, 2013, this NewsBrief has been updated for MurthyDotCom readers.

The term “cap gap” refers to the period of time between April 1st and October 1st each year when many F-1 students experience a gap from the end of their optional practical training (OPT) employment authorization to the start date of their H1B employment. This gap is created because of the annual limit, or cap, on H1B petitions. In 2008, the U.S. Citizenship and Immigration Services (USCIS) created the cap-gap rule, which makes it easier for many students in F-1 status to bridge this gap. More information on cap-gap relief is available in the MurthyDotCom article, OPT Cap-Gap Extensions (04.Apr.2016). The Murthy Law Firm receives many questions during late spring and summer from F-1 students with cap-gap OPT extensions who wish to travel abroad. While it is often possible for those with unexpired employment authorization documents (EAD) to take short trips abroad, there are some travel limitations that apply to students during the cap-gap extension period.

No OPT Card Issued for Cap Gap

Individuals who benefit from the cap-gap provisions are eligible to receive new I-20s form from their respective designated school officials. They do not, however, receive new EADs indicating extension of their OPT authorizations, even if they are authorized to work during the cap-gap period.

Travel While H1B is Pending Results in Termination of Cap-Gap Benefits

Students with cap-gap benefits based on pending H1B petitions should not travel. The reasoning behind this is that, if a foreign national travels while a petition to change status is pending, the change-of-status request is considered abandoned. Without the pending change-of-status request, the student is no longer eligible for cap-gap relief.

If travel is absolutely necessary before the H1B petition requesting a change of status is approved, the student should be prepared to remain outside the United States until the petition is approved, so that s/he can apply for and obtain an H1B visa stamp at a U.S. consulate or embassy abroad. The student will then be able to reenter the U.S. in H1B status no earlier than ten days prior to the October 1st employment start date.

Travel Permitted After H1B is Approved

Once an H1B petition is approved with a change-of-status request, a student benefiting from cap-gap relief generally may travel abroad and reenter the United States in F-1 status prior to October 1st. The student must have a valid F-1 visa at the time of reentry, along with an I-20 form that reflects the cap-gap benefit and the DSO’s proper endorsement for travel. If the student reenters the U.S. prior to October 1st, the status will change to H1B on that day pursuant to the approved H1B petition. In order to request admission on or after October 1st, the student must to first obtain an H1B visa.

Conclusion

While it is possible in some situations to take short trips abroad during cap-gap, students should understand the travel limitations and plan accordingly.

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