An F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status on October 1st can have his or her F-1 status and any current employment authorization automatically extended through September 30th. This is often referred to as the “cap-gap.” The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and extended through September 30th, with October 1st being the requested start date of their H-1B employment (unless otherwise terminated by the employer, or the H-1B petition is rejected or denied prior to October 1st). For example, if an F-1 student has a pending H-1B petition with a change of status request, and the student’s OPT expires between April and October 1st, the student is automatically eligible for “cap-gap” extension until September 30th.
USCIS recently issued a news update reminding F-1 students who have an H-1B petition that remains pending on October 1, 2018 to know that they risk accruing unlawful presence if they continue to work on or after October 1st (unless otherwise authorized to continue employment). Due to high caseloads, USCIS has not been able to adjudicate all H-1B change of status petitions for F-1 students by October 1st.
Again, if you are an F-1 student with an H-1B cap-subject petition still pending, you are no longer eligible to work unless you have valid employment authorization. However, you can stay in the United States based on the pending H-1B petition.
According to a recent news update from USCIS:
“While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS to allocate additional resources to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after Oct. 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past Sept. 30, they may continue to work as authorized” (emphasis added).
To read the entire USCIS news update regarding “cap-gap” status only valid through September 30, 2018, click here.
By Kristina M. Hernandez
Kristina is an associate attorney at Reddy & Neumann. She was admitted to the State Bar of Texas in 2011. Her practice includes representing companies and individuals with employment-based visa petitions and applications.