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.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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