- posted: Feb. 01, 2019
Our firm is approached by our clients and prospects to understand regulations relating to Cap-Gap and I deem it proper to detail the following note in a simple description to help understand some of the important things to keep in mind, especially for those who are currently on F-1 status and expect to have their H-1B petitions filed by H-1B employers.
What should I know if I am F-1 student and have accepted an offer for H1B employment?
1. What is Timely Filed petition? "Timely Filed" means petition is filed during the H-1B acceptance period, which begins on April 2, 2019 for Fiscal Year (FY) 2020, when the student's authorized F-1 duration of status (D/S) admission is still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period commonly known as the "grace period").
2. Is Premium Processing (expedited processing) available for my case? Premium Processing is currently suspended until Feb 19, 2019. If USCIS opens up premium processing, the petition can be converted from regular to premium processing.
3. What happens if my petition is not adjudicated by September 30th? F-1 status and employment authorization (if in OPT) extends until September 30, 2019 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 I as cap-gap beneficiary remain in the United States beyond September 30, 2019 while the H-1B petition is pending? Yes, you can remain in the United States while the H-1B application is pending. BUT, you must carefully note the following guidelines provided by U.S. Immigration and Customs Enforcement (ICE): (a) the cap gap extension of OPT [the duration of status and any employment authorization granted cannot be extended beyond September 30, if the H-1B petition filed on the student*s behalf has not been adjudicated by USCIS? (b) 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 I, the beneficiary, who is in a cap-gap extension period departs the U.S. while the H-1B petition is pending with USCIS, will I 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.
Must know about August 9, 2018 USCIS Policy Memo regarding the accrual of unlawful presence
On August 9, 2018, USCIS published a revised final policy memorandum entitled *Accrual of Unlawful Presence and F, J, and M Nonimmigrants* 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. It is important to note that any violation of F-1 status could result in the accrual of unlawful presence. 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.
Additional Resources
The above information is reflective of current rules and regulations. Any case specific issue must be discussed with experience U.S. Immigration Attorney. Additional information can be found on our website www.bhagwatilaw.com Feel free to contact us and our experienced Lawyers shall be available to assist you. You can also visit www.uscis.gov
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Vijay Bhagwati, Esq.
Founder and Managing Partner
