As of April 2, 2025, the U.S. Citizenship and Immigration (USCIS) has updated the M-274 Handbook for Employers to reflect the December 18, 2024 Department of Homeland Security final rule automatically extending the cap-gap period for eligible F-1 students so as to avoid certain students with unadjudicated cap-subject H-1B petitions from losing work authorization on October 1. Employers who file cap-subject H-1B change of status petitions on behalf of F-1 students will want to ensure that they properly complete or update Form I-9 for such students in a timely manner.
As background, regulatory cap-gap provisions allow certain F-1 students to extend their F-1 status to bridge the gap between the end of their F-1 status and the start of their cap-subject H-1B. Cap-gap also allows students with valid, unexpired Optional Practical Training (OPT) or STEM OPT to extend their work authorization to the start of their cap-subject H-1B. To qualify for cap-gap extension, the employer must file a timely H-1B petition requesting a change of status for the F-1 student.
Regulations provide that if a student in F-1 status without OPT or STEM OPT has a timely-filed cap-subject H-1B change of status petition submitted on their behalf, they will receive a cap-gap extension of their F-1 status only. If a student in F-1 status with unexpired OPT or STEM OPT has a timely filed cap-subject H-1B change of status petition filed on their behalf, they will receive a cap-gap extension of both F-1 status and OPT.
In prior years, cap-gap protections only applied through the start of the new fiscal year, October 1. As a result, certain F-1 students whose cap-subject H-1B petitions had not yet been adjudicated by USCIS by October 1, lost their employment authorization between October 1 and the effective date of their new H-1B petition.
The new regulations provide that cap-gap status and employment authorization will now continue through April 1st or the date the cap-subject H-1B goes into effect, whichever is earlier. This will prevent F-1 students with OPT or STEM OPT with pending cap-subject H-1B petitions from losing work authorization while waiting for USCIS to adjudicate their petition.
Form I-9 Instructions for Employers
- Employers are reminded that students with expiring OPT or STEM OPT must timely reverify the Form I-9 prior to the expiration of their Employment Authorization Document (EAD);
- To be eligible for cap-gap employment benefits, the F-1 student
must:
- have a cap-subject change of status H-1B petition filed on their behalf
- have an unexpired EAD at the time cap-subject change of status H-1B petition received by USCIS
- The "alien authorized to work until" date entered on Form I-9 will be April 1, 2026 for cap-subject H-1B petitions submitted for fiscal year 2026 (not October 1, 2025 as in prior years).
Associate Xhulia Gjokaj was a contributing author to this client alert.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
