USCIS warning that CAP-GAP coverage ends September 30

by Farhad Sethna, Attorney, © 2018

The USCIS announced yesterday (September 28, 2018) that F-1 students who had applied for a Change of Status to H-1b under the FY 2019 quota and had NOT yet been approved for COS effective October 1, 2019, would be unlawfully present in the USA if they continued to work on or after October 1,  2019 IF they did not have some other type of work authorization (example – valid OPT).  So – if you:

  1.  Are a student and your intending employer filed a petition for change to H-1b effective October 1 or later; AND
  2. The petition has NOT yet been approved; AND
  3. You DO NOT have other approval to continue working in the USA past October 1, 2019;  THEN
  4. You must stop working on September 30, 2019. If you do not, you will accrue “unlawful presence” in the USA.

What is “unlawful presence”?  It means exactly what it sounds like:  Being present in the USA without legal basis – in this case, the unlawful presence is really a two-pronged issue:

  1. Unlawful presence due to expiry of F-1 status and all possible OPT and “grace period” extensions;  and
  2. Unlawful presence due to employment on or after October 1, 2019.

I would NOT advise any student to accrue either type of unlawful presence in the USA – either will have serious consequences later for change of status to another visa type (example H-1b), or adjustment of status (“green card”) applications.

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Here is the text of the USCIS press release:

F-1 students who have an H-1B petition that remains pending on Oct. 1, 2018, risk accruing unlawful presence if they continue to work on or after Oct. 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through Sept. 30. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS may not be able to adjudicate H-1B change of status petitions for all F-1 students by Oct. 1.

USCIS 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 Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is referred to as filling the “cap-gap”, 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 Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to Oct. 1.

While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS 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 Oct. 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, 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 Sept. 30, they may continue to work as authorized.

USCIS is committed to adjudicating all petitions, applications, and requests fairly and efficiently on a case-by-case basis to determine if they meet all standards required under applicable laws, regulations, and policies.

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© Farhad Sethna, Attorney, 2018

Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.