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 to bridge this gap. More information about cap-gap relief is available in the MurthyDotCom article, OPT Cap-Gap Extensions (29.Mar.2013). The Murthy Law Firm receives many questions during late spring and summer from F-1 students with OPT who wish to travel abroad. While it is often possible for those with unexpired OPT to take short trips abroad, described here for MurthyDotCom readers is the travel limitation that applies to students with cap-gap benefits.
No OPT Card Issued for Cap Gap
Individuals who benefit from the cap-gap provisions receive a new I-20 form from their school officials. They do not receive a new EAD indicating they are on OPT, sometimes referred to as an "OPT card," even if they are authorized to work during the cap-gap period. Those with unexpired OPT EAD cards are not in a cap-gap period. Cap gap only applies when there is an expiration or "gap" between the OPT (or related grace period) and the start of the relevant fiscal year, on October 1st.
Travel Issues
Immigration and Customs Enforcement (ICE) guidance states that students with cap-gap benefits based upon 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, and the case instead is consular processed. Unfortunately, ICE has not provided guidance on how travel applies to individuals with approved H1B change-of-status petitions who wish to travel prior to October 1st. In the absence of further guidance on this question, those who are benefiting from cap-gap relief should avoid foreign travel if they wish to return prior to October 1st. If travel is absolutely necessary, students should understand that they likely will need to wait to return until they have valid H1B visas and can return in H1B status.
In addition to the ICE guidance regarding abandonment of change of status, a student in the cap-gap period lacks the documentation needed for readmission at the port of entry (POE). The OPT card itself is a required document that must be presented at the POE to gain admission to the United States in F-1 status to resume OPT employment. Students in the cap-gap period do not have this document. While many are work authorized, they do not receive a new, extended OPT card as proof of the cap-gap OPT extension. If travel is absolutely necessary, such students should be prepared to remain outside the United States until they have valid H1B petition approvals and approved H1B visas, in order to return to the U.S. This means waiting until no earlier than ten days prior to October 1st of the particular year, to return to the United States.
Conclusion
This matter has not been clarified or resolved following the issuance of the ICE guidance. Thus, students in cap gap should respect this limitation and plan accordingly, until this policy changes.
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