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As of October 1, 2018, F-1 “Cap-Gap” Work Authorization Ends for F-1 Students who have H-1B Petitions Still Pending in the FY2019 Cap

According to USCIS regulations, “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, 2018],” is eligible through the “cap-gap” provision to have his or her “F-1 status and any current employment authorization extended through [September 30, 2018].” The “cap-gap” provision allows an F-1 student to fill the “gap” between the time in which their F-1 status expires and when their filed H-1B employment may start at the beginning of the new fiscal year (October 1st).

However, due to high caseloads, the USCIS has not been able to adjudicate all of the H-1B petitions filed in the FY2019 H-1B Cap before October 1, 2018, the start of the new fiscal year, leaving many “cap-gap” H-1B petitions still pending beyond the coverage of the cap-gap provision.

Since the “cap-gap” provision allows for extended work authorization and F-1 status only through September 30th, any F-1 student who has their FY2019 H-1B Cap petition still pending as of today risks “accruing unlawful presence if they continue to work on or after [October 1, 2018] (unless otherwise authorized to continue employment).”

In other words, if an F-1 student (with a pending FY2019 H-1B Cap Petition) maintains a valid OPT EAD (or other valid work authorization), they may continue to legally work beyond September 30, 2018 for the duration of their valid work authorization until their H-1B Petition is approved. If an F-1 student (with a pending FY2019 H-1B Cap Petition) was only work-authorized through the “cap-gap” provision, they must immediately stop working, as they may accrue unlawful presence starting on October 1st.

Please feel free to contact USILAW with any questions or issues that you may have. You may reach us via telephone at +1 (202) 618 4540 or via email at anindita@usilaw.com.

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