Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is commonly 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 if F-1 status is not extended for qualifying students. Individuals currently in a cap-gap extension period face additional uncertainty and challenges this year while they await the adjudication of their H-1B petitions by USCIS. Without the ability to upgrade these filings to premium processing due to the August 28, 2018 USCIS announcement extending the suspension of premium processing, many H-1B applicants who are in a cap-gap extension period may be waiting beyond September 30, 2018 for USCIS to complete the adjudication of their pending cap-subject H-1B petition. The following issues should be paid specially attention with.

1. Can I request premium processing for a FY2019 cap-subject H-1B petition that is still pending with USCIS?

No. On August 28, 2018, USCIS announced that the suspension of premium processing for H-1B cap-subject petitions, originally expected to be lifted on September 10, 2018, will now be extended for another five months, until at least February 19, 2019. The suspension of premium processing has been expanded to include all H-1B petitions filed at the Vermont and California Service Centers, except cap-exempt filings. The suspension also does not apply to H-1B petitions requesting a “continuation of previously approved employment without change,” filed with the Nebraska Service Center.

2. Can the petitioner submit a request to expedite the H-1B petition?

The August 28, 2018 USCIS announcement extending the suspension of premium processing specifically states that petitioners may submit a request to expedite an H-1B petition if they meet the criteria on USCIS’ Expedite Criteria webpage. As noted by USCIS, the petitioner must demonstrate that they meet at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite request. The USCIS announcement further provides that USCIS will review all expedite requests on a “case-by-case basis” and will grant requests “at the discretion of office leadership.”

3. What happens to a beneficiary who is in a cap-gap extension period if the H-1B petition is not adjudicated by September 30, 2018?

F-1 status and employment authorization (if in OPT) extends until September 30, 2018 for individuals in a cap-gap extension period. After this date, individuals are no longer work authorized as part of the cap-gap extension period.

4. Can the cap-gap beneficiary remain in the United States beyond September 30, 2018 while the H-1B petition is pending?

Yes, the beneficiary can remain in the United States while the H-1B application is pending. U.S. Immigration and Customs Enforcement (ICE) has provided the following guidance on the issue:

9.1.5. Can the cap gap extension of OPT be extended beyond September 30 if the H-1B petition filed on the student’s behalf has not been adjudicated by USCIS? No, pursuant to 8 CFR 214.2(f)(5)(vi)(A), the duration of status and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) and (C) of an F-1 student who is the beneficiary of an H-1B petition and request for change of status can only be extended until October 1. If the H-1B petition is pending beyond October 1, a student can remain in the United States based on the pending change of status petition. However, a student with OPT employment authorization extended through the cap gap period must stop working until the H-1B petition is approved

5. If a beneficiary who is in a cap-gap extension period departs the U.S. while the H-1B petition is pending with USCIS, will he/she still be eligible for H-1B status, if the petition is ultimately approved?

Yes, however, USCIS will consider the change of status request abandoned. The H-1B petition will convert to consular processing and the beneficiary will need to schedule an appointment at a U.S. Consulate based on the H-1B approval.

6. If a cap-gap beneficiary departs the U.S., can the beneficiary work remotely abroad for the petitioner?

There is no restriction on the beneficiary working abroad for the petitioning employer. The petitioner, however, will need to investigate the laws that they need to follow to legally employ and pay the beneficiary in the other country.

7. Should individuals who are in a cap-gap extension period be concerned with the August 9, 2018 USCIS Policy Memo regarding the accrual of unlawful presence?

Yes. On August 9, 2018, USCIS published a revised final policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.” The final policy memorandum establishes new USCIS policy regarding the determination as to when nonimmigrant academic students (F), vocational students (M), and exchange visitors (J) begin accruing “unlawful presence” in the United States. F-1 students need to be aware of this new policy and should be advised accordingly based on their own specific situation. They need to be aware that any violation of F-1 status could result in the accrual of unlawful presence. Accrual of unlawful presence, based on the new policy, may have already begun accruing for the individual as of August 9, 2018. This should be considered when determining whether to await the adjudication of the pending H-1B petition in the United States or to depart the United States and await a decision abroad.

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.

 

Please contact Attorney Jing Feng if you have any question related to your working visa  jfeng@fengvisa.com