The H-1B visa quota is widely-known for filling up quickly – usually within the first week of April – the very first week after USCIS begins accepting petitions subject to the annual cap. The legislation caps the number of H-1B visas at 85,000 slots annually: 65,000 for first-time applicants and the remaining 20,000 for individuals with master’s degrees or higher. Each year, a substantial portion of applicants include H-1B candidates who hold F-1 student status and who are employed in the United States pursuant to F-1 Optional Practical Training (OPT). Because many of these applicants’ F-1 OPT status expires after April 1st but before October 1st, they often rely on the “Cap-Gap Rule”. The Cap-Gap Rule allows F-1 OPT holders to remain and continue working in the U.S. past the expiration of their OPT and for as long as the H-1B cap petition is not denied or rejected by USCIS.
Pursuant to 8 C.F.R. § 214.2(f)(5)(vi)(A), where the F-1 timely files a Change of Status (COS) to H-1B and the H-1B cap has been reached, F-1 status and employment authorization (if in OPT) is automatically extended until September 30th of that fiscal year. As such, the “gap” between the time the F-1would have expired and the October 1st H-1B start date is eliminated. In order for this cap-gap to apply, the H-1B petition must have been timely filed, the requested start date had to be October 1st of the following fiscal year, and the F-1 holder must not have violated his or her nonimmigrant status. Moreover, in order to benefit from the cap-gap, the OPT must expire on or after April 1st. The “cap-gap” period begins when an F-1 student’s status and work authorization expires and, unless terminated, ends on October 1st – which is the required date of their approved H-1B employment. It is important to note however, that the cap-gap rule only allows OPT extensions up until September 30th.
Due to the heavy demand of H-1B visas and the current suspension of Premium Processing, it is highly likely that USCIS will be unable to adjudicate all H-1B petitions by September 30th. Consequently, there are many cases where the F-1 OPT holder will no longer be eligible to work in the U.S. under the cap-gap rule. In other words, should these petitions remain pending beyond September 30th, affected F-1 OPT students may remain in the U.S., but must cease employment or risk violating their F-1 status by engaging in unauthorized employment and therefore jeopardize their pending H-1B. Please note, however, that STEM F-1 students who have filed a timely extension of STEM OPT are able to continue to work based on the pending and/or approved STEM OPT.
As of today, premium processing for new H-1B cap petitions is still unavailable. Furthermore, on August 28th, it was announced that premium processing will remain halted through to February 2019 and CIS further expanded the suspension to petitions from current H-1B holders seeking to change employers. Affected individuals, as well as the companies which employ them, should be reminded of this September 30th date. Because the F-1 OPT cap-gap rule does not permit employment beyond this date, F-1 holders must cease employment as of September 30th and wait until the H-1B petition is adjudicated or risk violating their F-1 status.
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Nancy Vo – Attorney
Nancy Vo is currently an Associate Attorney at Wilner & O’Reilly. She graduated Magna Cum Laude from Whittier Law School. While at Whittier, she was an editor on Whittier Law Review, had an article published in 2015, and earned a CALI award in Legal Writing. Ms. Vo earned a Bachelor’s Degree in Political Science and Public Law from the University of California, San Diego.
Richard Wilner – Founding Partner
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.