As you know, with the recent suspension of H1B Premium Processing until Feb 2019, it becomes very challenging and tricky for many of the F1 students on OPT Cap Gap and working, who have filed H1B visa petition and in pending state. We will look at the regulations and other details like if one can work after Sept 30th, in this article.
Background – What is Cap Gap ?
In simple terms, Cap Gap is the period between when a student’s F1 status ends and H1B status begins. In general, F1 students, who are on OPT with their EAD card expiring before October 1st are given automatic status extension under cap gap regulation until Sept 30th, if they file H1B petition on time in April and it is approved or pending, so that they can start working on H1B status from October 1st. They need to update their DSO at school that H1B was filed on time in April with a proof of USCIS receipt notice, Fedex receipt, etc and subsequent updates on the H1B petition, so that DSO can extend their F1 status accordingly and issue New I-20 with the same. For more info, read SEVP Portal, SEVIS Updates with H1B Lottery – F1 student
Can F1 Student on OPT work during cap gap Period ?
Yes, F1 student can continue working during cap gap period, if their H1B petition was properly filed and their OPT was not expired at the time of filing of H1B petition in April of that year. If the student OPT was expired during the filing of H1B petition in April and student was on 60 days grace period, then they cannot work during cap gap, but will be given extension of status as per cap gap regulation until September 30th.
When does F1 students Cap Gap Extension End ?
As per regulation, F1 students cap gap extension ends on September 30th, unless the H1B petition that was applied gets denied, rejected or withdrawn. If any of the denial, rejection or withdrawal happens, the OPT EAD ends on the day of the decision, student should stop working and standard grace period of 60 days begin from that day.
Can the cap gap extension, initially granted until September 30th , be extended beyond September 30th, if the H1B Petition decision is Pending with USCIS ?
No, it cannot be extended after September 30th. As per regulation the duration of stay and employment authorization related to OPT ends on September 30th, even if the H1B petition decision is pending with USCIS.
But, Can I work after September 30th, if I was working on OPT in Cap Gap and my H1B petition is pending with USCIS ?
No, you cannot work after September 30th. Your cap gap extension of F1 status ends on September 30th and you should stop working on September 30th. See below official guidance screenshot.
What happens to my F1 Status after September 30th , if my H1B petition is pending ? Can I stay in the US ?
Your F1 status under cap gap ends on September 30th and you will be 60 days standard F1 student grace period. So, your F1 grace period will last until November 30th and after that you can remain in US until your H1B petition is adjudicated. Your stay during that period is considered as “Period of Authorized Stay”, but you will not have an official visa status tied to you. The risk you carry is that, if your petition is denied you accrue unlawful presence from the date of decision or from Aug 9th, 2018 depending on the reason for denial.
What are some of the implications of Pending H1B Petition for F1 Cap Gap Students in US ?
One of the biggest impact for F1 Cap Gap students, who do not get a decision by September 30th , is that they cannot work and they could potentially lose benefits of insurance, etc. from the employer. Also, one of the other concerns is that, if your H1B petition gets denied, you accrue unlawful presence from the day of your decision or from Aug 9th, 2018, if it was related to unauthorized activity…Worst case scenario, if you get H1B petition decision after Feb 5th, 2019 and it was related to your unauthorized activity, you would have accrued 180 days of unlawful presence and you will be subject to a 3 year bar to enter US on any visa. ( bar means, you cannot and will not be able to). You can read full details on the F1 Visa Unlawful Presence Memo by USCIS, Implications
What are the few options to consider, if you are in cap gap period and your H1B Petition is still pending ?
It can be tricky situation for F1 students with H1B pending as there is no premium processing. It is highly recommended that you discuss with your immigration attorney and make a decision based on your case and your case history. But, to quote, few of the options that you can pursue are listed below :
- Apply for Change of status before Nov 30th during grace period.
- Apply and Transfer to a new school to pursue a new degree before Nov 30th.
- Prepare to leave US before Nov 30th, your petition’s Change of Status would be abandoned automatically and adjudicated normally like in Consular Processing. You can apply for H1B visa in your home country, if approved and plan to re-enter US on H1B. Inform your attorney regarding the same and seek guidance.
What do you think of the situation of pending H1B with USCIS for cap gap students ? Any tips from your immigration attorneys to share ?