SEVP Guidance on Length of Cap-Gap Extension for Eligible OPT Students  Posted Jun 20, 2008
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The Student and Exchange Visitor Program (SEVP) has issued clarifications of the timelines for cap-gap extension of F-1 status and Optional Practical Training (OPT) authorization, as determined by the possible scenarios related to the H1B petitions filed on behalf of affected students. The chart outlining Events Impacting the Length of the Cap Gap Extension is part of the SEVP Policy Guidance 0801-01: Updates to Post-Completion Optional Practical Training, available on the U.S. Immigration and Customs Enforcement (ICE) WebSite under Item 9.1.1. Our clarification of some of the questions regarding cap-gap timelines is intended to help MurthyDotCom and MurthyBulletin readers who are F-1 students affected by the cap-gap provision.
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The new cap-gap rule was initially reported in our April 9, 2008 NewsFlash, F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis. On May 23, 2008, the USCIS clarified the new rule with a series of questions and answers, about which our readers were informed in our June 6, 2008 article, USCIS Additional FAQs on F-1 OPT Cap Gap for Qualified Students. The provisions described below all pertain to eligibility for extended OPT time periods. Nothing in these provisions reduces OPT time that is properly granted.
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Cap-Gap Extension Based on Timely-Filed Petitions until June 2, 2008
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According to the SEVP timelines, if a student with OPT is the beneficiary of a properly-filed H1B petition, this alone provides a basis for OPT extension until June 2, 2008, and extends the regular 60-day grace period following OPT until August 2, 2008. This impacts many individuals whose employers properly filed H1B petitions that were not receipted, as they were not selected in the lottery. If a student's original OPT authorization was to expire after June 2, 2008, s/he should be allowed to continue employment based on that prior authorization and would not need these extension provisions. The date of June 2, 2008 was selected as the USCIS expected to complete the receipting process for cap-subject H1B filings by that time.
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Process to Obtain the Cap-Gap Extension
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In order to benefit from the cap-gap extension described above, a student must have sent a request for the extension, with proof of proper H1B filing, to the Designated School Official (DSO). The student's record would then have been "fixed" to indicate the new end date of the OPT authorization. These provisions provided a benefit to many individuals, depending upon their particular situations, as they may have permitted individuals to remain in the U.S. in valid status longer than initially expected, based on the initial OPT authorization dates. Such individuals, if they took proper action with the DSO, may be able to use this extended time and extended grace period to apply for another period of study or for a change to another status for which they may be eligible.
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Cap-Gap Extension Based on Being H1B Wait Listed
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In addition to cases that were properly filed but not selected in the H1B lottery, there are cases which were put on the waiting list. The USCIS issued receipts for these cases without assigning them case numbers. These cases would have been notified if the USCIS had additional H1B visa numbers to enable the processing of these cases. However, as discussed in, "H1B Update on Cap-Subject Petitions : June 2008," (article #1 above) these cases will all be rejected. However, individuals with OPT, who were placed on the waiting list, were eligible for an OPT authorization extension until July 28, 2008, with the F-1 status grace period continuing through September 27, 2008. Students in this case must also notify their DSOs by requesting extensions with proof that their petitions were wait listed.  
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Cap-Gap Extension Based on H1B Receipt or Approved Petition
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In any other case in which a petition was receipted and/or approved, both the student's OPT authorization and the student's SEVIS record extends until September 30, 2008. No request for an extension needs to be submitted to the DSO, as SEVIS will use the information from the USCIS to update the student's record. However, a student may want to request that a new I-20 be printed with the new OPT end date.
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If H1B Petition is Withdrawn or Denied OPT Terminates
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If the H1B petition is withdrawn or denied, the OPT authorization will end ten days after the date of the withdrawal or denial. The grace period ends sixty days after the date of the withdrawal or the denial. No notification to the DSO is required. Of course, the originally approved OPT will remain unaffected if it extends into the future beyond ten days after the withdrawal or the denial.
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Conclusion
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We at the Murthy Law Firm are pleased that the USCIS has attempted to provide some framework to help students. The timelines for cap-gap extensions should not be overlooked when students find themselves in situations without receipted or approved H1B petitions. This may be extremely important to those who would like to stay in the U.S., as they have specific time periods to change to other nonimmigrant statuses or continue in F-1 status by enrolling in further study.