What Happends if I Used My H-1b Visa for a Period and Then Left and Now I Want to Use It Again

H-1B and OPT Cap-Gap Extensions

The H-1B

To notice out more near the H1-B, run across below and attend one of our H-1B Workshops or take a look at the H1-B FAQ page for general H1-B data . See the USCIS H1-B website for full data on H1-Bs.

The H-1B status permits temporary employment (up to 6 years) in the U.South. for people who accept a minimum of a Available's degree in the same or a related field as the chore offered. The employer must submit a petition to the U.Southward. Citizenship and Immigration Service (USCIS) for approval of the H-1B position. Petitions are approved on a start come, first served basis. The H-1B has an annual numerical limit (cap) of 65,000 new statuses/visas each financial yr. An additional 20,000 petitions filed on behalf of beneficiaries with a master's degree or higher from a U.Southward. institution of higher education are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization or a government enquiry arrangement are non subject to this numerical cap. For further information about the numerical cap, run into the USCIS H-1B Cap Season folio.

In 2020 USCIS implemented an electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject field petitions must start electronically register and so pay pay a registration fee to be considered for selection for H1-B filing. The H-1B selection process will then exist run on properly submitted electronic registrations. Only those with selected registrations volition exist eligible to file H-1B cap-subject petitions. For more information on the H1-B registration process and timeline, see the USCIS H1-B Electronic Registration Process website.

The OPT Cap-Gap Extension

A Cap-Gap extension is a regulatory provision which extends an eligible F-ane student'southward condition to bridge the gap between the cease of F-1 OPT or OPT STEM work dominance and start of H-1B condition, thereby allowing the student to remain in the United states of america during the "gap."

Basics & Eligibility

What is the H-1B Cap?

The H-1B cap is the limit on the number of H-1Bs allowed each fiscal year.* Currently, the cap is 65,000. The fiscal yr begins on October ane when a new batch of the 65,000 H-1Bs becomes available.20,000 beneficiaries of H-1B petitions filed for new employment or for a change of employer are exempt from being counted confronting the H-1B cap if the beneficiary has earned a main'south degree or higher from a U.South. institution of college education. Run into theUSCIS H1-B website for the more information.

H1-B Registration & H1-B Filing
Employers wanting to file a cap-subject H-1B petition must first submit registrations during the registration menstruation(generally during March) , naming and paying a $10 registration fee for each private they hope to file for. USCIS volition so deport a lottery of all registrations received, and notify employers which beneficiaries have been selected by March 31. After notification, the employer will and then have a 90-day flow beginning Apr 1 in which to file a complete H-1B petition. An employer may not file a cap-subject H-1B petition for any casher whose registration was not selected in the registration lottery. For current timelines see the USCIS H1-B Electronic Registration Process website.

*The cap does not use to all H-1B visas. (The cap does not touch on H-1B petitions at UC Berkeley.) An individual may exist exempt to the H-1B cap if they are employed or have received an offer of employment at a qualifying establishment: an institution of higher education, a nonprofit entity related to or affiliated with an establishment of higher pedagogy, a non profit research organization or a government organization. Berkeley International Office cannot advise on an employer's cap condition. Please check with your private employer and their legal counsel.

Eligibility for the OPT Cap-Gap Extension

The Cap-Gap extension is available to students who, are either on approved F-1 OPT or Stalk OPT or in their 60-day grace flow and have a pending or approved change-of-condition for an Oct 1st cap-discipline H-1B petition with USCIS which was filed prior to the expiration of their OPT/Stalk or 60-twenty-four hour period grace menstruation. For more than informaiton, see the USCIS Cap Gap webpage.

What does information technology mean to accept filed for an October. 1 Cap bailiwick H1-B petition prior to the expiration of their OPT/Stem or threescore-day grace period?
Please understand that the H1-B registration process is unlike than the H1-B Change of Status filing process! To qualify for the F-1 OPT Cap Gap Extension the employer must have submitted the Form I-129 requesting Change of Status and an employment start date of October 1, and that I-129 filing MUST BE RECIEVED by USCIS before the expiration of the OPT/STEM EAD or lx-day grace period.

Those filing for H-1B via consular processing DO NOT qualify for the Cap-Gap Extension. You must confirm with your employer if the H-1B will be filed as a "Change-of Condition" or via "Consular Processing." You may be eligible for one of two Cap-Gap extension benefits:

If the employer filed your H-1B (change-of-status) petition and information technology is received by USCIS prior to your post-completion OPT expiration date, you authorize for an extension of your OPT employment authorization.
If the employer filed your H-1B (alter-of-status) petition and information technology is received by USCIS later on your post-completion OPT expires but during your lx twenty-four hour period grace period post-obit OPT, your F-1 status and permission to remain in the US are extended only y'all are not eligible to work.

Apply for an OPT Cap-Gap Extension I-20

Petitions that have been filed and receipted:If your H-1B (I-129 including modify-of-status) petition has been filed by your employer and receipted by USCIS, you lot are eligible for an automatic Cap-Gap extension I-20 through September 30th. To request this Cap-Gap extension I-20, access the " H-1B Cap Gap Extension I-20 Request " in your SSU Hub. You will be asked to upload the post-obit:

Your 12 Month EAD or STEM EAD card, if y'all haven't already
a re-create of the I-797 Receipt or Approving notice from USCIS

You will signal your preferred Delivery Method (Express Mail, USPS Airmail or Selection Upwards). This volition take us about 5 business days to process.

Petitions that have been filed simply NOT receipted: Currently, SEVIS does non allow Cap Gap Extensions for applications that have not been selected for processing and receipted.

How long will the OPT Cap-Gap Extension I-20 request take?

Berkeley International Office will submit the Cap-Gap request to SEVIS inside 5 (5) business days of the receipt of your request grade in SSU Hub (see higher up), provided all data above is accurate and complete. Sometimes the Cap gap does not announced in the SEVIS record and Berkeley International Role must make a request to SEVIS to correct the record. This tin can cause delays in processing the request that are out of BIO's control. (See beneath in Problems and Issues.)

How practise I know if I have a Cap Gap Extension on my I-20? What does information technology look similar?

Page ii of your I-20 volition have 2 distinct changes:

Under EMPLOYMENT AUTHORIZATIONS on page 2 of your I-20, your current OPT or Stalk Extension will at present take a 30 SEPTEMBER cease date.
Your I-20 will also include a special notation in the CHANGE OF Condition/CAP-GAP EXTENSION department on page two, showing details virtually your H1-B and H1-B receipt number and Comments stating "F-ane status and employment authorization for this student have been automatically extended to September 30, 2018. The pupil is authorized to remain in the United States and go on employment with an expired employment authorization document. This is pursuant to 8 CFR 214.two(f)(v)(iv) and 8 CFR 274a.12(b)(half-dozen)(4), equally updated April 8, 2008 in a rule published in the Federal Annals (73 FR 18944). Boosted information nigh the automatic extension can be found on the Student and Exchange Visitor Program Website at www.ice.gov/sevis."

What if my OPT expires before my employer files for the H1-B Modify of Condition? Will the preliminary or automatic Cap-Gap Extension extend my OPT?

Although your F-1 status would be extended if you lot are in your sixty-day grace menstruation when the petition is filed, your OPT employment dominance period has expired, and the Cap-Gap does not serve to reinstate or retroactively grant employment say-so. Your legal status to remain in the U.S. in F-1 status is extended, but y'all are required to end working until your H-1B goes into effect on October 1st ( or at whatsoever appointment your Change of Status becomes constructive). Consult with your BIO advisor and the legal counsel working on your H1-B application to decide your all-time strategy and if a Cap-Gap is actually the right choice for you.

Can I travel during a Cap-Gap Extension period and still return with my OPT I-20 and EAD?

Please note, traveling outside the US may interfere with the processing of your H-1B petition. Berkeley International Office strongly advises students to consult with their employers and the legal counsel processing the H-1B regarding all travel plans before departing the Usa. Berkeley International Office cannot propose straight on the touch of travel on your individual H-1B awarding. Meet the USCIS Cap Gap webpage for more information.

In general, during the Cap-Gap menstruum, you can travel and re-enter the U.Southward. if:

You have a valid F-i visa at the time of re-entry
You have an I-20 that reflects the Cap-Gap benefit and has a travel signature (no older than 6 months)
The H-1B petition filed on your behalf has been approved before you lot travel.

Per Department of Homeland Security policy, an applicant who departs the U.S while a alter of condition application is pending is considered to have abandoned the application.

Can I file for an H-1B and a Stalk OPT Extension at the same time?

Yes, but filing these applications meantime can sometimes cause complications in your SEVIS record. You can apply for a STEM OPT Extension before your OPT EAD expires. If you are planning to file for an H-1B and Stalk at the same time, you should submit your OPT Stalk application on time, before the original 12 month EAD expires.

You should besides be mindful to take extra steps when filing for your STEM Extension and continuing your F-one condition:

Before requesting a STEM I-xx, check with your employer and the legal counsel working on your H-1B and confirm that your employer recommends that you lot file Stalk/H-1B concurrently at this time.
When submitting your Stalk OPT Extension include the STEM/Cap-Gap Letter if a Cap-Gap appears on your OPT STEM I-20
If no Cap-Gap currently appears on your I-xx, merely your employer has filed for the H-1B include the STEM/H1B Letter
Update BIO equally soon as possible regarding any Withdrawal or Denial of your H1-B petition. These actions may have an impact on your SEVIS record, and a BIO adviser will demand to review the record to see if whatsoever corrections need to exist made.
If your H-1B is approved, the STEM Extension (or pending STEM Extension) will finish on the date your H-1B becomes effective. Written report the end of your OPT via the SSU Hub. Select "Report Early OPT/Bookish Training Completion" and provide your I-797 Approval Discover From USCIS. Your F-one record will be completed after the effective date of your H-1B.

Can I as well utilise for a Stem OPT Extension before my Cap Gap period starts? (Earlier my OPT EAD expires)

Yes, you can apply for a STEM OPT Extension before your OPT EAD expires. If you are planning to file for an H-1B and Stem at the aforementioned fourth dimension, you should submit your Stalk OPT awarding on fourth dimension, earlier the original 12 month EAD expires.

Y'all should also be mindful to take extra steps when filing for your Stalk Extension and continuing your F-i status:

When submitting your Stem Extension include the Stalk/Cap Gap Letter
Update BIO as before long as possible regarding any Withdrawal or Denial of your H-1B petition. These deportment may have an impact on your SEVIS record, and a BIO adviser will need to review the tape to see if whatever corrections need to be made.
If your H-1B is canonical, the Stalk Extension (or awaiting Stem Extension) will finish on the engagement your H-1B becomes effective. Report the end of your OPT via theSSU Hub. Select " Report Early OPT/Academic Grooming Completion " and provide your I-797 Approval Discover From USCIS. Your F-1 record will be completed after the effective engagement of your H-1B.

Can I apply for a Stem OPT Extension during my Cap Gap period? (Later on my OPT EAD expires, merely BEFORE the Cap-Gap extension expires Sept 30)

Berkeley International Office DOES Not advise submitting a STEM OPT Extension awarding later the expiration of your original 12 month OPT EAD, fifty-fifty if you have a Cap-Gap Extension on your I-20 which extends your OPT until Sept 30.

USCIS states on its Cap Gap website website that "Students who are eligible for a cap-gap extension of mail-completion OPT employment and F-1 condition may apply for a Stem OPT extension during the cap-gap extension period. Even so, students may not apply for a STEM OPT extension once the cap-gap extension menstruation is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the lx-day grace menses." However, BIO's current experience is that that Stem applications submitted later the end of the OPT EAD, but during the Cap-Gap period carry a very loftier risk of denial. Additionally, for those applications that are approved, if the H-1B is later denied, it could cause serious problems the Stalk OPT Extension and F-1 SEVIS record. In most cases, the H-1B denial will result in the ending of the Stalk Extension and F-1 SEVIS record.

I am already canonical for a Stalk OPT Extension, and my Stem OPT Extension is expiring. Tin I qualify for Cap-Gap Extension to start afterward my STEM OPT expires?

Yes, STEM extension holders may qualify for the Cap-Gap Extension if they meet eligiblity requirements. See above for Cap-Gap Eligiblity.

My employer filed for my H-1B and the petition has been approved. Should I file for the STEM Extension if my H-1B is already Canonical for October. ane?

You lot may non need a STEM extension if your OPT is catastrophe and your H-1B has already been approved. If this is your situation, check with a BIO adviser before submitting your STEM request. An adviser volition need to review your tape and H-1B approving discover.An adviser will decide whether a STEM Extension or Cap-Gap I-xx is meliorate for you.

Before contacting a BIO adviser, make sure that y'all take 1) uploaded a copy of your OPT EAD carte to the SSU Hub and ii) accept your H-1B I-797 Approving Discover From USCIS.

Problems & Bug

Cap-Gap not appearing in SEVIS Organisation/Cap-Gap Information Fix

If Berkeley International Part checks your SEVIS tape and finds that Cap-Gap has non automatically been practical, then we will have to request a data fix from the SEVIS Aid Desk. In these cases, nosotros will take to submit a copy of your EAD card, your H-1B Receipt Notice or your H-1B Approval Notice. This will ofttimes crusade a filibuster in the processing of your Cap-Gap I-20, and you volition be notified if there is a filibuster of more than the 5 business solar day processing time.

What if my original OPT expires and my Cap-Gap Extension data fix is still pending with SEVIS Aid Desk-bound?

Your postal service-completion OPT is automatically extended, whether yous utilise for the Cap-Gap extension I-20 or not. Therefore, yous are allowed to continue working with your employer while the Cap-Gap extension data fix is pending. Besides, keep in mind that the 90-twenty-four hour period unemployment rule remains in effect during your automatically extended work potency. During this fourth dimension you lot must continue to update Berkeley International Office of any changes in your employment or address via our Student SEVIS Update (SSU) Hub form.

What happens if my H-1B is rejected, withdrawn, or denied after applying for the Cap-Gap Extension?

If the student's H-1B is not selected, or is withdrawn, denied, or revoked the student volition have the standard 60-mean solar day grace menstruum from the appointment of the rejection detect to prepare for and depart the U.S. In some cases it may be possible to use for an I-20 transfer during the grace menstruation, but this is oft not available. Notwithstanding, if a denial is based on a discovered condition violation, no such grace menstruum exists and the educatee must exit the U.S. immediately.

What if a Cap Gap appears in my record, but my employer is non subject to the Cap? Or my employer filed the H-1B for "consular processing"?

You are non eligible for the Cap Gap Extension if your employer is non cap-subject, or if your employer files for your H-1B via consular processing. If a Cap-Gap appears in your F-1 tape and you are in one of these categories, delight contact Berkeley International Office as soon as possible. An adviser will need to submit a request to SEVIS Helpdesk to remove the H-1B or Cap-Gap information from your F-1 record. If we are non able to remove the wrong H-1B information from your record, your F-1 record may accidentally complete.

Incorrect consular processing H-1B notations are quite common, as SEVIS sometimes has difficulty identifying whether the petition is a Change of Condition H-1B or a consular processing petition.

What if my regular Cap Gap Extension until Sept. 30 expires and my H-1B is not yet approved?

If your H-1B has non yet been accepted for processing and receipted, BIO cannot extend your OPT past September 30 unless you can qualify for and submit a timely filed OPT STEM Extension. If your H-1B is not approved by Sept. 30, your F-i employment authorisation will end. You will then accept the standard 60-solar day grace period from the Cap Gap end date of Sept thirty to ane) depart the U.S., 2) apply for an I-xx transfer, or three) to piece of work with your employer and clearing legal counsel regarding your electric current H-1B Modify of Condition and options to remain in the U.Southward.

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Source: https://internationaloffice.berkeley.edu/students/employment/cap-gap