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.
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