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September 30, 2018



USCIS recently stated that full time international students who have a pending H-1B petition as on Oct. 1, 2018, are not eligible to continue to work after October 1, 2018 and they are at the risk of accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through September 30, 2018.


According to the regulations 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 beginning from October 1, 2018, is eligible to have his/her F-1 status and any current employment authorization to be extended till September 30, 2018. This process is commonly known as filling the “cap-gap” extension.


In case if the F-1 students cap-gap H-1B petition remains pending on or after October 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student may continue to stay in the United States while the change of status petition is pending without accruing unlawful presence. However, it should be noted that they do not work without valid work authorization. It should also be noted that if an F-1 student who has a pending change of status H-1b petition has work authorization (such as an I-765 with valid dates) that extends beyond September 30, they may continue to work according to the valid work authorization.


The regulation provides a way of filling and continuing the current status and work authorization between the end of F-1 status and the beginning of H-1B status. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30, 2018.


USCIS also stated that the recent temporary suspension of premium processing of certain types of H-1B petitions allowed USCIS additional resources and time to prioritize and adjudicate these cap-gap applications. However, due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS may not be able to adjudicate H-1B change of status petitions for all F-1 students before October 1, 2018.


USCIS is committed to adjudicating all petitions, applications, and requests fairly and efficiently on a case-by-case basis to determine if they meet all standards required under applicable laws, regulations, and policies.


Emandi Law Firm advises all international students to check their status and work authorization validity periods and seek competent legal advice to avoid any accrual of unlawful presence and other status related issues.


Please visit www.emandilaw.com for latest news on immigration.

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