Beneficiaries of the H-1B visa and F-1 students on "cap-gap" employments authorization still waiting for their H-1B petition to be approved must take care to avoid violating the terms of their status. This post details how violations can be avoided.
Cap subject H-1B beneficiaries must take precautions to avoid violating the terms of their status. Therefore, any F-1 student relying on “cap-gap” employment authorization whose H-1B petition is still pending after October 1st must stop working until their petition is approved. They must be taken off their employer’s payroll. These students are allowed to remain in the country while their petition is pending, but they cannot continue to work for their employer.
Cap-subject H-1B petitions selected and approved by USCIS will be valid starting October 1, 2018. Typically, if their OPT was still valid when their cap H-1B petition was filed, graduating F-1 students are able to rely on the “Cap-Gap” that extends their status and OPT work authorization until September 30th allowing students whose valid OPT work authorization ends prior to October 1st to continue working until their H-1B becomes valid. However, due to significant backlogs and prolonged adjudications many selected H-1B petitions will remain unadjudicated and pending well beyond October 1. The Cap Gap does not apply beyond October 1st. This means that OPT F-1 students whose selected H-1B petitions are still pending cannot continue to work after October 1st until their H-1B has been approved.
In past years F-1 students facing this predicament could take advantage of Premium Processing to ensure their petition was adjudicated before October 1st. Unfortunately, this year USCIS has temporarily suspended premium processing for cap-subject H-1B petitions. This means there is no way to speed up the adjudication process for a cap subject H-1B at this time.
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