I finished my first year of OPT in April. Prior to the expiration of my OPT, my employer filed my H1B petition, for the October 1st start date, and I filed an OPT STEM extension application; both are pending. …

… The USCIS issued a request for evidence (RFE) on my STEM extension application, asking for a copy of a new I-20 based on a training plan that my employer and I have to submit to my DSO on form I-983. My employer does not think that they will be able to provide such a training plan, and asked that I simply continue working pursuant to the cap-gap rule. Is this possible?

Answer

If your first year of OPT was still valid when the H1B petition was filed, it would put you in the cap-gap period with employment authorization. However, if your STEM extension was also filed, and it is still pending and/or approved, you are subject to the STEM OPT requirements. To simply work based on the cap-gap authorization, the STEM extension would have to be withdrawn. (12.Aug.2016)

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