F-1 OPT employees who recently had a cap-subject H-1B petition filed on their behalf may benefit from the “cap gap” extension, which automatically extends their status and work authorization to September 30 if their OPT EAD expires before then, and the H-1B change of status petition is filed before the EAD expiration date. The cap gap extension remains effective through September 30, as long as the I-129 petition is pending. If the H-1B petition remains pending after September 30, the beneficiary can remain in the U.S. in a period of authorized stay, but will not be authorized to work until the petition is approved and their status has been changed to H-1B.

As we approach September, employers are therefore advised to consider a premium processing upgrade for any H-1B petitions that are currently still pending for beneficiaries using the cap gap extension, to ensure their employee’s H-1B change of status is approved by October 1 and to avoid a gap in work authorization. As premium processing can now take 15 business days (rather than calendar days), an I-907 upgrade request with the $2,805 filing fee would need to be filed with USCIS by September 9 at the latest to ensure an approval by September 30 (assuming a Request for Evidence is not issued). Once the I-129 petition is approved, the beneficiary’s status will automatically change from F-1 to H-1B on October 1 (as long as they remain in the U.S.), enabling the employee to continue work uninterrupted.

By: Rebecca Chen

Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.