Introduction

The US Citizenship and Immigration Services (USCIS) issued an alert on 28 September 2018 reminding F-1 students with an H-1B petition that remained pending on 1 October 2018 that they risk accruing unlawful presence if they continue to work on or after 1 October (unless otherwise authorised to continue employment) because their cap-gap work authorisation was valid only until 30 September. Due to an increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, the USCIS noted in the alert that it might be unable to adjudicate H-1B change of status petitions for all F-1 students by 1 October.

Overview

The USCIS also noted that its 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 1 October to have their F-1 status and any current employment authorisation extended until 30 September. This is referred to as filling the 'cap-gap'. According to the USCIS this means that the regulations provide a way to fill the gap between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The cap-gap period begins when an F-1 student's status and work authorisation expire and they are extended until 30 September, with 1 October being the requested start date of their H-1B employment (unless otherwise terminated) or the H-1B petition is rejected or denied before 1 October.

The USCIS said that while the temporary suspension of premium processing of certain types of H-1B petition has allowed the agency to allocate additional resources to prioritise the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after 1 October, the F-1 student is no longer authorised to work under the cap-gap regulations. However, USCIS also stated "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".

Comment

If an F-1 student with a pending change of status petition has work authorisation (eg, an I-765 with valid dates) that extends past 30 September, the F-1 student may continue to work as authorised.

For further information on this topic please contact Tim Braswell Jr at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (timb@employmentimmigration.com). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.

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