Reminder: F-1 OPT Cap-Gap Employment with Pending H-1B Valid Only Until September 30th

Published: 09/18/2020

Source: https://bit.ly/3mBvJab

This year’s busy H-1B cap season included many H-1B employee candidates who hold F-1 status and who are employed in the U.S. pursuant to F-1 optional practical training (OPT) status.    Out of these F-1 visa holders, many rely on the OPT cap-gap rule to continue working in the U.S. after the post-April 1st expiration date of the OPT and for as long as the H-1B cap petition is not denied or rejected by USCIS.   However, the OPT cap-gap rule allows OPT extension only until September 30th, possibly leaving some H-1B candidates in a period of unauthorized employment.

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F-1 OPT Cap-Gap Employment Authorization Valid Only Until September 30th

Due to this year’s heavy H-1B visa demand, it is almost certain that USCIS will not be able to adjudicate all H-1B petitions by September 30th.   As a result, there are likely to be many cases where the F-1 OPT holder is taking advantage of the OPT cap-gap rule to work after the post-April 1st OPT expiration date based on the pending H-1B petition.   Many F-1 students in this situation, however, are not aware that the OPT cap-gap rule applies only until September 30th and if the H-1B cap petition remains pending beyond September 30th, the F-1 holder would no longer be eligible to work in the U.S. under the OPT cap-gap rule (stay in the U.S. is likely to be authorized for as long as the H-1B cap petition seeking change of status to H-1B remains pending).

Am I Affected By This Rule and Am I In Danger of Losing Employment Authorization?

The first step for an F-1 OPT candidate for an H-1B cap visa is to understand whether he or she is affected by this situation.   If (1) the candidate’s F-1 OPT expiration date was after April 1st but before September 30th, if (2) H-1B cap petition is still pending decision with USCIS, and (3) if the H-1B cap petition was filed requesting change of status, then it is likely that the F-1 candidate may be in danger of losing OPT cap-gap work authorization if the H-1B petition remains pending beyond September 30th.  Please note that STEM F-1 students who have filed a timely STEM OPT extension are likely to continue to be able to work based on pending or approved STEM OPT.

Early Premium Processing Upgrade May be Needed to Avoid Interruption of Employment Authorization

In those cases where the H-1B cap petition seeking change of status remains pending beyond September 30th, the F-1 OPT cap-gap rule does not permit employment and the F-1 holder will have to stop working as of October 1st and wait until the H-1B petition is approved (or risk violating their F-1 status by engaging in unauthorized employment).

To avoid the possibility of a period of lack of employment authorization and disruption at the workplace, we recommend that candidates and their employers consider upgrading their H-1B petition to premium processing in order to get a response within 15 calendar days.   Please note that USCIS may request additional evidence or RFE (especially if they have not already done so) on the H-1B petition in which case the employer would have to respond to the RFE and then the government would have another 15 days to provide a response.

It is September 30th and My H-1B Petition is Still Pending – What Should I Do?

Most importantly — stop working — because the OPT cap-gap employment authorization ends on September 30th if the H-1B petition is still pending as of that date.    If a premium processing upgrade has not been done, it may be a good idea to do so in order to minimize the period without employment authorization and so that the candidate can get back to work as early as possible.    Please also consider contacting us for a consultation.

Conclusion

For those affected by the OPT gap-cap rule with a pending H-1B petition we recommend premium processing upgrade as soon as possible to minimize periods without employment authorization and disruption of employment.    A timely and properly-filed premium processing upgrade even in late August stands a good chance to allow uninterrupted OPT gap-cap, followed by H-1B, employment authorization.

Source: https://bit.ly/3mBvJab

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