H-1B Cap Petitions:  Cap-Gap F-1 Status or F-1 Work Authorization is Valid Till September 30, 2018

Immigration law provides that certain F-1 students with pending or approved cap-subject H-1B Petitions that have been timely field for the Fiscal Year (FY) 2019 for change-of-status for an October 1, 2018 H-1B start-date will have their F-1 status or F-1 work authorization automatically extended during the cap-gap period (unless the F-1 status/work authorization is otherwise terminated).

Cap-gap is the gap period between the expiration of an F-1 status or F-1 work authorization until September 30, 2018.  Cap-gap doesn’t apply if such H-1B Petition is rejected or denied before October 1, 2018.

Cap-gap extension of an F-1 work authorization terminates automatically on October 1 2018.  Any F-1 cap-gap beneficiaries whose H-1B Petitions are still pending would no longer be eligible to work starting October 1, 2018 and will accrue unlawful presence if they continue working.  However, they may wait in the U.S. (unless there is an immigration violation such as unauthorized employment).  However, pending change-of-status H-1B beneficiaries whose F-1 work authorization remains valid independently (not pursuant to cap-gap; i.e. I-765 card that is valid beyond September 30, 2018) may continue working.  

At this time, premium processing for certain H-1B Petitions including H-1B Petitions subject to FY 2019 Visa Cap are temporary suspended until February 19, 2019.

For additional information, please visit:

https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-post-completion-optional-practical-training-opt-and-f-1-status-eligible-students-under-h-1b-cap-gap-regulations

September 28, 2018

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & info at tiyaimmigration dot com

Direct dial from abroad: 001-703-7728224

https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Aik Wan Kok at Tiya represents companies, employers, individuals and families, located nationwide and internationally, in U.S. Immigration Law.  We focus on diverse immigration cases such as extraordinary ability; national interest waiver; PERM; green card; N-400 Naturalization; various waivers; H cases; L executive, manager and specialized knowledge professional; E treaty investor/trader; cases with USCIS, U.S. Department of Labor, U.S. Consulates and National Visa Center.

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