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 than most the H1-B, see below and attend one of our H-1B Workshops or take a look at the H1-B FAQ page for full general H1-B information . See the USCIS H1-B website for total information on H1-Bs.

The H-1B status permits temporary employment (upwards to 6 years) in the U.Southward. for people who take a minimum of a Bachelor'south degree in the same or a related field every bit the job offered. The employer must submit a petition to the U.S. Citizenship and Immigration Service (USCIS) for approval of the H-1B position. Petitions are approved on a first come, start served ground. The H-1B has an annual numerical limit (cap) of 65,000 new statuses/visas each financial year. An boosted twenty,000 petitions filed on behalf of beneficiaries with a principal'due south caste or higher from a U.S. institution of higher educational activity are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an establishment of higher education or its affiliated or related nonprofit entities, a nonprofit research organization or a government research organisation are not field of study to this numerical cap. For further data about the numerical cap, see the USCIS H-1B Cap Season folio.

In 2020 USCIS implemented an electronic registration procedure for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions must kickoff electronically register and so pay pay a registration fee to exist considered for option for H1-B filing. The H-1B selection process will and so be run on properly submitted electronic registrations. Simply those with selected registrations will be 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-1 student'due south condition to bridge the gap between the finish of F-1 OPT or OPT STEM work say-so and start of H-1B status, thereby allowing the student to remain in the U.s. during the "gap."

Nuts & Eligibility

What is the H-1B Cap?

The H-1B cap is the limit on the number of H-1Bs allowed each financial yr.* Currently, the cap is 65,000. The financial twelvemonth begins on October 1 when a new batch of the 65,000 H-1Bs becomes bachelor.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 master's degree or college from a U.S. establishment of higher education. See theUSCIS H1-B website for the more than information.

H1-B Registration & H1-B Filing
Employers wanting to file a cap-subject H-1B petition must first submit registrations during the registration period(generally during March) , naming and paying a $ten registration fee for each individual they hope to file for. USCIS will then conduct a lottery of all registrations received, and notify employers which beneficiaries have been selected past March 31. After notification, the employer volition then have a 90-twenty-four hour period period beginning Apr one in which to file a complete H-1B petition. An employer may not file a cap-bailiwick H-1B petition for any beneficiary whose registration was not selected in the registration lottery. For current timelines see the USCIS H1-B Electronic Registration Procedure website.

*The cap does non apply to all H-1B visas. (The cap does not affect H-1B petitions at UC Berkeley.) An individual may be exempt to the H-1B cap if they are employed or have received an offer of employment at a qualifying establishment: an institution of college education, a nonprofit entity related to or affiliated with an institution of higher education, a non profit enquiry organization or a regime arrangement. Berkeley International Office cannot propose on an employer'due south cap status. Please check with your individual employer and their legal counsel.

Eligibility for the OPT Cap-Gap Extension

The Cap-Gap extension is available to students who, are either on canonical F-i OPT or Stem OPT or in their threescore-twenty-four hour period grace catamenia and accept a pending or approved modify-of-status for an October 1st cap-subject H-1B petition with USCIS which was filed prior to the expiration of their OPT/STEM or sixty-24-hour interval grace period. For more informaiton, see the USCIS Cap Gap webpage.

What does it mean to have filed for an Oct. 1 Cap subject field H1-B petition prior to the expiration of their OPT/STEM or lx-day grace period?
Please understand that the H1-B registration process is different than the H1-B Change of Status filing process! To authorize for the F-1 OPT Cap Gap Extension the employer must have submitted the Course I-129 requesting Change of Status and an employment start date of October 1, and that I-129 filing MUST BE RECIEVED past USCIS before the expiration of the OPT/Stalk EAD or threescore-solar 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." Yous 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 authorisation.
If the employer filed your H-1B (change-of-status) petition and information technology is received by USCIS after your post-completion OPT expires but during your 60 mean solar day grace menstruum following OPT, your F-1 condition and permission to remain in the United states of america are extended but you are non eligible to work.

Apply for an OPT Cap-Gap Extension I-twenty

Petitions that have been filed and receipted:If your H-1B (I-129 including change-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-xx, access the " H-1B Cap Gap Extension I-20 Asking " in your SSU Hub. Yous will exist asked to upload the following:

Your 12 Calendar month EAD or Stem EAD card, if you haven't already
a copy of the I-797 Receipt or Blessing discover from USCIS

Yous will indicate your preferred Delivery Method (Express Mail, USPS Airmail or Pick Up). This volition take us about five business organisation days to procedure.

Petitions that take been filed but NOT receipted: Currently, SEVIS does not 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 asking take?

Berkeley International Function will submit the Cap-Gap asking to SEVIS within v (five) business days of the receipt of your request form in SSU Hub (see higher up), provided all data to a higher place is accurate and complete. Sometimes the Cap gap does not appear in the SEVIS record and Berkeley International Office must make a request to SEVIS to correct the record. This can crusade delays in processing the request that are out of BIO'due south command. (Meet beneath in Issues and Bug.)

How do I know if I have a Cap Gap Extension on my I-20? What does it expect like?

Page 2 of your I-xx will take two distinct changes:

Under EMPLOYMENT AUTHORIZATIONS on page 2 of your I-twenty, your current OPT or Stalk Extension volition now take a xxx SEPTEMBER end date.
Your I-20 will also include a special notation in the Alter OF Condition/CAP-GAP EXTENSION section on page two, showing details about your H1-B and H1-B receipt number and Comments stating "F-ane status and employment authority for this student take been automatically extended to September 30, 2018. The student is authorized to remain in the United states of america and continue employment with an expired employment authority certificate. This is pursuant to 8 CFR 214.2(f)(5)(4) and eight CFR 274a.12(b)(six)(iv), equally updated April 8, 2008 in a rule published in the Federal Register (73 FR 18944). Additional information about the automated extension can be found on the Educatee and Exchange Company Programme Website at www.ice.gov/sevis."

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

Although your F-1 condition would be extended if you are in your 60-24-hour interval grace menstruum when the petition is filed, your OPT employment authorization period has expired, and the Cap-Gap does non serve to reinstate or retroactively grant employment authorization. Your legal status to remain in the U.S. in F-1 status is extended, only you are required to end working until your H-1B goes into result on October 1st ( or at whatever engagement your Change of Status becomes effective). Consult with your BIO advisor and the legal counsel working on your H1-B application to make up one's mind your best strategy and if a Cap-Gap is really the right selection for you.

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

Please note, traveling outside the U.s.a. 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 earlier departing the U.s.. Berkeley International Office cannot advise straight on the impact of travel on your individual H-1B application. See the USCIS Cap Gap webpage for more information.

In general, during the Cap-Gap period, y'all can travel and re-enter the U.S. if:

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

Per Section of Homeland Security policy, an applicant who departs the U.S while a modify 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 aforementioned time?

Yes, but filing these applications concurrently can sometimes cause complications in your SEVIS record. You can utilize for a STEM OPT Extension earlier your OPT EAD expires. If you lot are planning to file for an H-1B and Stalk at the same fourth dimension, y'all should submit your OPT Stem application on time, earlier the original 12 month EAD expires.

Y'all should too be mindful to take extra steps when filing for your Stem Extension and continuing your F-ane status:

Before requesting a Stem I-20, bank check with your employer and the legal counsel working on your H-1B and confirm that your employer recommends that you file STEM/H-1B concurrently at this time.
When submitting your Stem OPT Extension include the STEM/Cap-Gap Alphabetic character if a Cap-Gap appears on your OPT Stem I-20
If no Cap-Gap currently appears on your I-twenty, just your employer has filed for the H-1B include the STEM/H1B Letter
Update BIO as shortly as possible regarding any Withdrawal or Denial of your H1-B petition. These deportment may have an impact on your SEVIS record, and a BIO adviser will demand to review the tape to run into if any corrections need to be fabricated.
If your H-1B is approved, the Stalk Extension (or pending STEM Extension) will stop on the appointment your H-1B becomes effective. Written report the terminate of your OPT via the SSU Hub. Select "Written report Early OPT/Bookish Preparation Completion" and provide your I-797 Approval Observe From USCIS. Your F-i record volition be completed afterwards the effective date of your H-1B.

Can I as well use for a Stem OPT Extension earlier my Cap Gap menstruum starts? (Before my OPT EAD expires)

Yes, y'all can apply for a STEM OPT Extension before your OPT EAD expires. If y'all are planning to file for an H-1B and STEM at the same time, you should submit your Stalk OPT awarding on time, before the original 12 calendar month EAD expires.

You should also be mindful to accept actress steps when filing for your STEM Extension and continuing your F-1 status:

When submitting your Stalk Extension include the Stem/Cap Gap Alphabetic character
Update BIO equally soon as possible regarding any Withdrawal or Denial of your H-1B petition. These actions may have an impact on your SEVIS tape, and a BIO adviser volition need to review the record to run across if any corrections need to be made.
If your H-1B is approved, the STEM Extension (or pending Stem Extension) will end on the engagement your H-1B becomes effective. Report the terminate of your OPT via theSSU Hub. Select " Report Early OPT/Bookish Training Completion " and provide your I-797 Blessing Notice From USCIS. Your F-1 tape will exist completed subsequently the effective date of your H-1B.

Tin I use for a STEM OPT Extension during my Cap Gap menstruation? (AFTER my OPT EAD expires, but BEFORE the Cap-Gap extension expires Sept xxx)

Berkeley International Office DOES NOT advise submitting a STEM OPT Extension application subsequently the expiration of your original 12 month OPT EAD, even 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 post-completion OPT employment and F-1 condition may apply for a STEM OPT extension during the cap-gap extension period. However, students may non apply for a Stem OPT extension one time the cap-gap extension period is terminated (if the H-1B petition is rejected, denied, revoked, or withdrawn) and the student has entered the 60-day grace period." However, BIO's current experience is that that Stem applications submitted after the cease of the OPT EAD, merely during the Cap-Gap flow conduct a very high risk of denial. Additionally, for those applications that are canonical, if the H-1B is later denied, it could crusade serious problems the Stalk OPT Extension and F-1 SEVIS record. In near cases, the H-1B denial will result in the ending of the Stalk Extension and F-ane SEVIS record.

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

Yep, 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 Approved for Oct. 1?

You lot may not 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 will need to review your record and H-1B approval notice.An adviser will determine whether a STEM Extension or Cap-Gap I-20 is better for yous.

Before contacting a BIO adviser, make certain that y'all take 1) uploaded a copy of your OPT EAD carte du jour to the SSU Hub and 2) have your H-1B I-797 Blessing Notice From USCIS.

Problems & Issues

Cap-Gap not actualization in SEVIS System/Cap-Gap Data Fix

If Berkeley International Function checks your SEVIS record and finds that Cap-Gap has not automatically been applied, then we volition have to request a data fix from the SEVIS Aid Desk. In these cases, we volition have to submit a re-create of your EAD card, your H-1B Receipt Notice or your H-1B Approval Notice. This volition often crusade a delay in the processing of your Cap-Gap I-20, and you will be notified if at that place is a delay of more than the 5 concern day processing time.

What if my original OPT expires and my Cap-Gap Extension information fix is still awaiting with SEVIS Help Desk?

Your post-completion OPT is automatically extended, whether y'all apply for the Cap-Gap extension I-xx or not. Therefore, yous are immune to proceed working with your employer while the Cap-Gap extension data fix is pending. Also, keep in mind that the xc-day unemployment rule remains in effect during your automatically extended work dominance. During this time you must continue to update Berkeley International Role of whatever 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 educatee's H-1B is non selected, or is withdrawn, denied, or revoked the student will accept the standard 60-mean solar day grace flow from the date of the rejection notice to set up for and depart the U.South. In some cases it may be possible to apply for an I-20 transfer during the grace period, but this is often non bachelor. However, if a denial is based on a discovered status violation, no such grace menstruation exists and the student must leave the U.Southward. immediately.

What if a Cap Gap appears in my record, just my employer is not 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-bailiwick, or if your employer files for your H-1B via consular processing. If a Cap-Gap appears in your F-1 record and yous are in one of these categories, please contact Berkeley International Office as soon as possible. An adviser volition demand to submit a request to SEVIS Helpdesk to remove the H-1B or Cap-Gap data from your F-1 tape. If we are not able to remove the incorrect H-1B information from your tape, your F-1 tape may accidentally complete.

Incorrect consular processing H-1B notations are quite common, equally SEVIS sometimes has difficulty identifying whether the petition is a Modify 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 canonical?

If your H-1B has not all the same been accepted for processing and receipted, BIO cannot extend your OPT past September 30 unless yous can qualify for and submit a timely filed OPT STEM Extension. If your H-1B is not approved by Sept. 30, your F-one employment authorisation will end. You volition then have the standard sixty-day grace period from the Cap Gap stop date of Sept 30 to 1) depart the U.South., 2) utilize for an I-20 transfer, or iii) to work with your employer and immigration legal counsel regarding your electric current H-1B Change of Status and options to remain in the U.S.

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