Oct. 1st: Alert for F-1 “Cap-Gap” Students and Their Employers with Pending H-1B Petitions

Foreign student (F-1) visa holders pursuing bachelors or advanced degrees at U.S. colleges and universities are allowed to take advantage of “optional practical training” (OPT) to gain work experience in their fields of study.   Some students use their OPT time for internships during the school year, and many others work after graduation.

An employer can petition for an H-1B professional work visa on the F-1 graduate’s behalf, so that the s/he can continue to work for the employer after the OPT period and corresponding work permit ends.   However, there are annual numerical limits on H-1B visas, particularly affecting F-1 visa holders who have only bachelors degrees.  That visa limit is known as the “cap.”

New H-1B visas do not become available until the beginning of each fiscal year on October 1st.  However, the F-1 visa holder’s OPT work permit may expire before that date.   USCIS devised a “cap-gap” regulations for this situation allowing the F-1 visa holder to continue working uninterrupted until the approved H-1B visa validity kicks in on October 1st.  This policy has avoided disruption for the employer and the employee alike.

USCIS has just announced that due to processing backlogs, many initial H-1B visa petitions for F-1 visa holders will not yet be decided by October 1, 2018, the start of FY 2019.   It noted that former F-1 students covered by the “cap-gap” whose work permits have already expired or will expire on September 30th will no longer be able to work until USCIS approves the employer’s H-1B petition filed on their behalf.  USCIS clarified that these “cap-gap” individuals can stay in the U.S. while they wait for USCIS to adjudicate their H-1B petitions, as long as they don’t work.   While the F-1 student can volunteer for the employer after September 30th, any form of monetary or in-kind contribution during this limbo period would constitute unauthorized employment and be a violation of status.   The F-1 student would have to leave the U.S. to obtain a new visa at the appropriate U.S. consulate abroad, causing additional disruption.

This information is not a substitute for individualized legal advice.  Employers and their F-1 employees with pending H-1B applications that have not been decided by September 30th should consult with their immigration counsel for more details.