F1 Student OPT in Cap Gap – H1B Petition Pending – Work after Sep 30th ?

In CPT| OPT| On-Campus by Kumar59 Comments

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F1 students cap gap extension ends on September 30th, unless the H1B petition that was applied gets denied, rejected or withdrawn.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.Can I stay and work in US after Septmeber 30th Cap Gap USCIS H1B Pending

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 ?

References :

Related Articles


Comments ( 59 )

  1. Szhu

    Hi! The egov site still says rfe response received but I saw SEVP updated my opt end date from 9/30/2018 (entended after lottery selected) back to my orginal end date (6/20/2018). Does this indicate anything?? Thanks!

  2. One W/ Questions

    Hello Kumar –

    Is it legit to use the earned PTOs after Sep 30 (CAP-GAP) while being temporarily terminated by the company?

    Thanks

    1. administrator
      Kumar

      Well, on paper, you are not employed, not sure how it will all work out. Talk to your immigration attorney and take their advice as it can be tricky.

  3. ALI SOHAIL

    Hello,

    i am in some serious trouble and need some help. I got 2 RFE with one being speciality occoupation and other one employer-employee relationship. I work as Corp Corp employee with employer who filed H1b is in texas and client in chicago. There is clause in rfe which states that you work in chicago and your employer in texas so the training programe should be in texas and you should also work in texas. Can anyone tell me how to resolve this? Attaching details below.

    F-1 Optional Practical Training (OPT) Status: U.S. Departrnent of Homeland Security (DHS) records show that the beneficiary is presently engaging in a24-month F-1 post-completion Optional Practical Training (OPT) extension that is commonly known as “STEM OPT.” STEM OPT is practical training for F-l students with U.S. science, technology, engineering and mathematics (STEM) degrees.
    Students engaging in STEM OPT rnust engage in a STEM training program that meets oertain requirements. One of the requirements of the STEM training program is that the STEM employer must have sufficient resources and trained or supervisory personnel available to provide appropriate training in connection with the specified training opportunity at the location(s) where the student’s practical training experience will take place. The “personnel” who may provide and supervise the training experience may not be employees or contractors of the STEM employer’s clients or
    csct I 29csct I 2000008087s I 7 (couRTESY coPY) 8ofl0
    customers. Moreover, the training experience must take place on-site at the STEM employer’s place of business or worksite(s) and may not take place at the place of business or worksite of the STEM employer’s clients or customers.
    Staffing and temporary agencies may seek to ernploy students under the STEM OPT program, but only if they will be the entity that provides the practicaltraining experience to the student at its own place of business and they have a bona fide employer-employee relationsliip with the student. Such staffing or temporary agencies may not, however, assign or contract out students to work for one of their custorners or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client.

    Waiting for your response.

    Thanks

    1. administrator
      Kumar

      Ali,
      You need to work with your attorney to resolve this as it is more complex and your attorney knows the best way to address it.

  4. Kittu

    Hello,

    My H1B is picked in lottery in May and my school issued a cap-gap i20 till Sept 30, 2018. Then, I applied for STEM OPT on 4th July, 2018 (OPT Exp. 5th August, 2018), at that time my school issued a new i20 that says my STEM pending with dates 01/Oct/2018-30/Sept/2020. and also my H1B pending. Now, since both are pending and I am done with Cap-Gap period, should I stop working ? or I can continue for another 120 days (since I get 180-day automatic extension from the day of OPT exp. since I applied a month before my actual OPT expired and properly)? Can someone help me with this situation?
    I have gone through Unlawful days notice from USCIS, but I am not quite clear if my case is different. as per this link, this says 180-day automatic extension from 5/Aug.
    https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/stem-opt

    1. Kittu

      This what USCIS F-1 Cap-gap notice says:
      “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.”

    2. administrator
      Kumar

      If you applied for OPT extension before expiry, you get STEM extension and you can continue to work, irrespective of the H1B pending status ( you do not fall under cap gap in this context) for upto 180 days from the date you applied for STEM Extension. You can discuss with your DSO on the same and also your immigration attorney to confirm the same.

  5. Sam Whittaker

    Hey Kumar,

    Is there any blog of yours’ on what next after H1-B approval?

    I would appreciate if you could direct me to the blog.

    Thanks
    Sam

  6. sg

    Same situation here. What is the chance of getting an RFE now if your H1B is still pending? Also, what exactly is the risk in travelling abroad and waiting for it in India.

    My lawyers said that RFEs might be rare given they should have mostly been issued already.

  7. Will

    I have a question. My H-1B Petition is still “Case was Received” and I will need to stop work on the 30th . Will my Petition get revoked from my current employment since I’m no longer an employee in my company after the 30th?

  8. Kiara

    To avoid any legal complications, my company has decided to terminate me starting Sept 30th.
    The attorney I am working with advised that it would not affect my H1-B application. However, I was under the impression that terminating me, voids my H1B application. Can I get some guidance on if terminating me still keeps my application active?

  9. Excel Monkey

    Hello! I have recently received an RFE, and I am worried that my H1B results would come out AFTER the 60 day grace period (after Nov. 30th). I’ve talked to my DSO, and she told me that I should stay in the country to continue waiting for the results, but after reading the article, I see that there is the risk of accruing unlawful stay if the petition gets denied. I am also aware that the change of status automatically becomes consular processing if I leave the country (during the 60 day grace period). I am planning on going back to my home country (to avoid the unlawful stay risk) around end of November and wait for my H1B results back at home. However, my DSO is saying that if I leave the country, USCIS might deny my petition as they might perceive my leave as “giving up” my petition. Is this a true statement? Would leaving the US to wait for the H1B results back at home affect the chances of getting an approval? Thank you

    1. administrator
      Kumar

      Well, I am not sure that USCIS would deny, just based on that… You leaving country, does not mean you have given up…it is a perception. It should not really impact your H1B’s decision. You may speak to an attorney and get advice…but USCIS would not really make judgement just based on you leaving the country.

  10. Cap_gap_H1b

    Hello,

    My h1b is still processing(Cap-gap) and I am leaving back to my home country on 28th Sep and will continue employment -Like a business trip(US payroll) with benefits. Will be back once it’s approved. My concern is the US pay and benefits? Would it be a problem later on? I would like a second opinion.

    Thanks.

    1. iron_man

      Interesting.. I am no legal expert but, from what you have mentioned that you will continue your employment and it will be like a business trip it sounds like you will not stop working even after 30th September. If your employer is still planning on keeping you on an US payroll after September 30th all that may get reflected on your employer’s payroll system which sounds like a legal risk to me (since you will be out of status from 1st October if your visa does not gets approved on or before that). If you can get paid in the local currency of your home country then it should be fine. Check with your immigration attorney.

  11. Radhika

    Hi,

    I am on CAP GAP, STEM OPT Expired and H1B is picked in the lottery. My Case status is still pending and no progress yet. I have been checking blogs and college websites where some say we should leave the country after 60 days grace period if the petition is still pending and some say we can stay here based on pending change of status. Which information is correct ?

    Thanks,
    Radhi

    1. samedwards

      Technically, you can stay here until your status is resolved. But, the catch is that if your H1b gets rejected over your 60 day grace period, you will have to leave immediately, otherwise you will start accruing unlawful presence. This accrual will harm your future visa chances. That is why people are planning on leaving within 60 days.

    2. administrator
      Kumar

      You can stay in country after 60 days, but you carry risk of accrual of unauthroized stay, if your petition gets denied for unauthorized activity. Read above article, it has the same info. It is just one of the suggested options to not have that risk.

  12. Prasanth

    HI admin,
    My Cap-gap ends on Sep 30th and still my case was received. I am going back to F1 again does this status effects my H1b Case. Please advise.

  13. Prasanth

    HI Emily,
    My Cap-gap ends on Sep 30th and still my case was received. I am going back to F1 again does this status effects my H1b Case. Please advise.

  14. ALI SOHAIL

    Hello Kumar,

    I have a question. My OPT expires Feb 15 2019. My H1B is still pending and shows case was received. Green card just started and will take time as well. So if my H1B is not approved by Feb 2019 what are my options to stay in US? Do I have to go for second masters? If yes can you recommend some public schools for MS in Computers? Is it better to go back to my country and wait till greencard gets approved?

    Please advise on it.

    Thanks

    1. administrator
      Kumar

      You may consider going back to school to be in status. We do not advise on schools. Personally, I do not believe in extending education for the sake of immigration, which you do not have any control on. Yes, that’s an option. Again, it is up to your situations, you need to make an informed decision.

  15. RK

    My first year OPT is ended on 5th Aug 2018, I have applied for STEM extension on 4th July 2018 (Its still pending as of today). I am currently on cap gap till 30th Sept. So if I my H1B is not approved by 30th Sept, What would be my status after 30th Sept.

    Are these rules apply to me as well? or I am good since my OPT STEM is pending?

    1. administrator
      Kumar

      No, they don’t apply to you. You get 180 days of automatic employment authorization, if you applied STEM Extension on time. You can check with DSO to get a new I20 issued.

          1. RK

            And don’t you think it is the 180-day period after my OPT is expired?
            Since my OPT expired on 5th Aug, I think I am good for 180 days since that date (not from 04th July, when I applied for an extension). Correct me if I am wrong

          2. administrator
            Kumar

            My bad, I misread it. Yes, it should be from 5th Aug. If OPT is not approved, then you go on to 60 days grace period from the day of rejection. Check with your attorney on how your H1B was filed either COS or consular processing and discuss options.

  16. Survivor

    Hi

    I have a question on this unlawful stay. Is that only incurs when the Petition is denied for the reason related to unauthorized activity. Is it safe to Stay in US until you get the decision if there is no unauthorized activity.
    What kind of this will come under unauthorized activity.

    Please reply As soon as you see this. I’m in edge 🙁

    1. administrator
      Kumar

      Yes. Yes, in normal cases that do not involve unauthorised activity, it starts from day the petition was denied after Nov 30th. It all depends on your case and your history of your situation, check with your immigration attorney to make a decision on the same.

  17. Anna

    I’m on CAP GAP, My law firm, Fragoman, conservatively recommended me to depart the US by 9/30 if no decision comes by 9/30, instead of staying till 11/30. I understand it’s related to the new guidance on unlawful presence. But how big is the risk if I stay till 11/30? (This article mentions if h1b gets denied then the risk would come. Can I say if it gets approved then there’s no risk at all?)

    1. Confused

      I ‘m on CAP GAP too. My employer consults Fragomen too. I kept specifically asking her if it was ok to continue to stay post Sept 30 and asked about the 60days grace period thing. She kept telling I can continue to stay until we hear back from USCIS with the decision. She doesn’t say that the 60 day grace period takes effect starting October 1st. Every portal/blog I see, people are saying the 60 days clock starts. I am confused who to believe?

      To top this off, I had received RFE and the status change to RFE response received on August 15th. No change till now. I am so stressed out right now!!

      1. administrator
        Kumar

        You can stay after September 30th. But, you cannot work.
        Also, if you are not sure about blogs, you should look at what the regulation says in official documents. Check the references links in above article. Also, you can write to your DSO to get clarification on the same, they can guide you as well.

  18. Tired of all this visa stuff

    Hi,

    One of our options is go to our home country and wait there for approval. My question is, could we work from our home country and keep the US payroll?

    Thanks!

      1. Tired of all this visa stuff

        Thanks Karn!
        Do they still pay you in the US to your US bank account in US$? For me it sounds weird because how does USCIS know that you are not working in US? if your company freezes your payroll thats the best way to proof it but if they are still paying you and dont know how they know…

          1. Digilpaandi

            I guess it depends on your employer… but generally No! If you get paid in US, it still means you are on the US company’s payroll.. and that’s technically illegal.

      2. Third & Final Attempt

        I would like to know too, especially for taxation purpose. Is it deferred or (upfront and deferred – half and half) salary, and what if the petition is denied?

  19. Last & Final Attempt

    If I am not mistaken, the change of status to consular processing is automatic if one leaves US while the petition is still pending. Only the change of status part is abandoned. I don’t think the attorney needs to change anything since the Form I-129 has been filled and filed.
    Please see No. 4 Processing Information in Form I-129 :
    https://www.uscis.gov/sites/default/files/files/form/i-129.pdf

  20. Shankar Velli

    This article is a detailed answer to my query day before yesterday. Although you have replied to my query as well but this detailed article helps. Thanks.

    Just to clarify my understanding, I hope people who are on OPT extension, they can continue to work without any issues after 30th Sept. This article is applicable only to those who are working on cap gap.

      1. caste

        Can you please elaborate on this? do STEM extension folks have a grace period?

        STEM Extension expired in June 28,2018 and H1b currently on RFE – Do I get a grace period to work while H1b is being processed?

        1. administrator
          Kumar

          If your STEM extension expired in June, you are also in cap gap as described above. You cannot work after September 30th as your status goes to F1 grace period from Sept 30th and you are not allowed to work. See the screenshot above on regulation.

          1. Genuine Applicant

            Similar situation as caste, currently on Cap-Gap and RFE pending. Will be in a 60-day grace period after 09/30 and have to stop working. How long is it safe to stay considering RFE gets resolved and the petition is approved?

            And with no premium processing, how soon can one expect a result after the RFE is responded to?

          2. administrator
            Kumar

            Everything is dependent on the case and hard to tell, if your RFE will go through or not…You can stay until Nov 30th as you will be in F1 grace period.

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