From F-1 and OPT to H-1B: cap-gap, the 2026 student rule and the H-1B lottery

Why the cap-gap exists

Post-completion OPT gives up to 12 months of work at each degree level, and STEM graduates may apply for a 24-month STEM OPT extension.

An employer may file a cap-subject H-1B petition no more than 6 months before the start date, so the earliest filing date is 1 April and the earliest start date is 1 October. OPT often ends in between.

The cap-gap rule fills that gap. Under the current regulation, the extension runs until 1 April of the fiscal year for which H-1B status is requested, or until the approved petition's start date if that is earlier.

Who qualifies

• The petition is cap-subject. Cap-exempt petitions, such as those from U.S. institutions of higher education, do not create a cap-gap.
• It rests on a valid, selected registration for the same person and fiscal year.
• It requests a change of status to H-1B, not consular notification.
• It is filed in the filing period that starts 1 April, while you are still in F-1 status: in your program, on OPT or STEM OPT, or in the departure period.
• If it is filed during the departure period, your stay is extended but you may not work during the cap-gap.
• The extension is automatic. Your DSO can issue an updated Form I-20 as proof for your employer.
• If the petition is denied, withdrawn, revoked or rejected, the extension ends; ask your DSO at once how long you have to leave or change status.
• You may apply for a STEM OPT extension during the cap-gap period.

The 2026 student rule: published, but postponed by a court

DHS published the final rule on 17 July 2026 (91 FR 44976), with 15 September 2026 as its effective date. On 14 September 2026 the U.S. District Court for the District of Massachusetts, in Presidents' Alliance on Higher Education and Immigration v. DHS, No. 26-cv-13799, postponed the effective date. DHS is preliminarily enjoined from taking further action to implement the rule.

USCIS says it applies the previous regulations while that order stands (USCIS Form I-539 page, checked 26 October 2026). Duration of status therefore continues for now, and the case may change that. The points below describe the rule as published, not the law today.

• New admissions: F-1 students would receive an I-94 “admit until” date based on the program end date on the I-20, capped at four years, plus 30 days to depart. Staying longer would need an extension of stay (Form I-539) or a new admission after travel.
• Departure period: it would be 30 days after completing the program, OPT or STEM OPT. The 60-day period applies today.
• Students in D/S on the effective date: they would stay without an extension until the I-20 program end date, or the end of OPT or STEM OPT valid on that date (up to four years), plus a 60-day departure period. Travel abroad would bring a fixed-date I-94 on return.
• OPT applications: the rule says a D/S student who files for OPT or STEM OPT by 18 March 2027 needs no separate extension of stay. A student readmitted with a fixed date would file Form I-539 together with the OPT application.
• Cap-gap: not affected either way, and the current regulation applies today. DHS states the rule does not change the automatic extension for beneficiaries of timely filed cap-subject H-1B petitions, and SEVP says these students do not need to file an extension of stay.
• Majors, transfers and new programs: under the rule, graduate students generally could not change major or transfer during the program, and a new F-1 program after completion would have to be at a higher level.

The H-1B registration and lottery

• FY 2027 registration opened at noon Eastern on 4 March 2026 and closed at 5:00 p.m. Eastern on 19 March 2026. The fee was $215 per registration.
• Selection is now weighted by wage level: a registration at OEWS wage level IV enters the pool four times, level III three times, level II twice and level I once. Each person counts once toward the cap.
• The annual cap is 65,000, plus 20,000 for holders of a U.S. master's degree or higher. USCIS has received enough petitions to reach both for FY 2027.
• Each year's initial registration period lasts at least 14 calendar days; USCIS announces the dates.
• Not selected? OPT and STEM OPT continue on their own terms, and cap-exempt employers and other categories such as O-1 remain options.
• Travel while the change of status is pending abandons the request. After approval, travel and return in F-1 before 1 October is generally possible if you are otherwise admissible.

Employer fees for an H-1B petition

Note 1

The $100,000 payment

A proclamation of 19 September 2025 required a $100,000 payment for certain H-1B petitions filed from 21 September 2025, mainly for people outside the U.S. without a valid H-1B visa.

It does not apply to a petition for someone inside the U.S. that requests a change of status, amendment or extension, if USCIS grants that request. Later travel on the approved petition does not trigger it.

If USCIS finds the person ineligible for the change of status, for example because of a status gap or departure before approval, the petition is treated like one for someone abroad.

On 8 June 2026 the U.S. District Court for the District of Massachusetts vacated the guidance implementing the payment (State of California v. Mullin), and on 24 July 2026 the First Circuit denied a stay. DHS says it is complying while it considers next steps and plans to collect the payment if the order is lifted.

How Merit can help

Merit's U.S.-licensed attorneys (Nora Busra Turan: Texas, New York, Maryland; Beyza Candelen: New York, New Jersey, Pennsylvania) advise students and employers on OPT timing, H-1B registration and change-of-status filings. See H-1B. This guide is general information, not legal advice.