U.S. Alert – F-1 ‘Cap-Gap’ Status, Work Authorization Extension No Longer Valid As Of October 1
F-1 ‘Cap-Gap’ Status, Work Authorization Extension No
Longer Valid as of October 1
U.S. Citizenship and Immigration Services (USCIS) issued an
alert on September 28, 2018, reminding F-1 students who have an
H-1B petition that remained pending on October 1, 2018, that they
risk accruing unlawful presence if they continue to work on or
after October 1 (unless otherwise authorized to continue
employment) because their “cap-gap” work authorization
was only valid through September 30. Due to increased demand for
immigration benefits, resulting in higher caseloads as well as a
significant surge in premium processing requests, USCIS noted in
the late-September alert that it might not be able to adjudicate
H-1B change of status petitions for all F-1 students by October
1.
USCIS noted that its regulations allow an F-1 student who is the
beneficiary of a timely filed H-1B cap-subject petition requesting
a change of status to H-1B on October 1 to have his or her F-1
status and any current employment authorization extended through
September 30. This is referred to as filling the
“cap-gap,” USCIS explained, meaning the regulations
provide a way of filling the gap between the end of F-1 status and
the beginning of H-1B status that might otherwise occur. The
“cap-gap” period starts when an F-1 student’s status
and work authorization expire, and they are extended through
September 30, with October 1 being the requested start date of
their H-1B employment, unless otherwise terminated or the H-1B
petition is rejected or denied before October 1.
USCIS said that while the temporary suspension of premium
processing of certain types of H-1B petitions has allowed the
agency 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 October 1, the F-1 student is no longer
authorized to work under the cap-gap regulations. However, USCIS
said, “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 September 30, USCIS explained, he or she
may continue to work as authorized.
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