Some F-1 students whose H-1B petitions were timely filed with an October 1 start date and requested change of status are eligible for a cap-gap extension of status and employment authorization. The cap-gap is the period between when the F-1 student status would end and the H-1B status begins on October 1.
Qualifying students are legally able to live and work in the United States during the “cap-gap” period. The cap-gap extension ends on September 30 or earlier if the H-1B petition is rejected, denied or revoked. Employers need to re-verify the work authorization of these students using the Form I-9.
The updated I-9 Handbook just revised the guidance on how to perform this verification correctly.
If the F-1 student had a valid EAD at the time the H-1B was filed, then the student will receive an automatic extension of his or her F-1 status and of the OPT work authorization.
To prove the identity and work authorization for the Form I-9, a student in this status may provide the following List A documents:
- Expired Employment Authorization Card (EAD) and
- Form I-797C, Notice of Action, if received.
Under prior guidance, the Form I-20 endorsed by the Designated School Official (DSO) recommending the cap-gap extension was the proof of ongoing work authorization. Because of USCIS’ delays in the issuance of receipt notices, employers might want to consider using the Form I-20 with the cap-gap endorsement if the Form I-797C has not been received.
To complete the Form I-9 re-verification using an expired EAD and Form I-797C, the employer would record the information relating to the EAD (which might already be in the form from the initial verification) in section 2. Then add the information relating to the Form I-797C and write “Cap-Gap” in the Additional Information section.
See an example of how to reverify the Form I-9 with a cap-gap employee.
The employer should keep a copy of the Form I-797C and EAD with the Form I-9.
The employer needs to re-verify the student’s Form I-9 prior to October 1 when the cap-gap status expires.