On September 28, 2018, USCIS released a memorandum reminding F-1 students on limitations of cap gap protection:
"F-1 students who have an H-1B petition that remains pending on Oct. 1, 2018, risk accruing unlawful presence if they continue to work on or after Oct. 1 (unless otherwise authorized to continue employment), as their 'cap-gap' work authorization is only valid through Sept. 30. 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 by Oct. 1. USCIS regulations allow 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 on Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is referred to as filling the 'cap-gap', meaning the regulations provide a way of filling the 'gap' between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The 'cap-gap' period starts when an F-1 student's status and work authorization expire, and they are extended through Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to Oct. 1. While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS to allocate additional resources to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after Oct. 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past Sept. 30, they may continue to work as authorized."
In keeping with this memo from USCIS, the American Immigration Lawyers Association (AILA) released a recent "practice pointer" on the topic. Highlights are reproduced just below:
H-1B petitions that are timely filed for an eligible F-1 student that request a change of status to H-1B on October 1 qualify for a cap-gap extension. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, which began on April 2, 2018 for Fiscal Year (FY) 2019, while the student's authorized F-1 duration of status (D/S) admission was 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"). In such scenario, the F-1 status and employment authorization (if in OPT) is automatically extended until September 30, thus eliminating the "gap" between the time the F-1 would have expired and the October 1 change of status date."
1. Can I request premium processing for a FY2019 cap-subject H-1B petition that is still pending with USCIS?
No. On August 28, 2018, USCIS announced that the suspension of premium processing for H-1B cap-subject petitions, originally expected to be lifted on September 10, 2018, will now be extended for another five months, until at least February 19, 2019. The suspension of premium processing has been expanded to include all H-1B petitions filed at the Vermont and California Service Centers, except cap-exempt filings. The suspension also does not apply to H-1B petitions requesting a "continuation of previously approved employment without change," filed with the Nebraska Service Center.
2. Can the petitioner submit a request to expedite the H-1B petition?
The August 28, 2018 USCIS announcement extending the suspension of premium processing specifically states that petitioners may submit a request to expedite an H-1B petition if they meet the criteria on USCIS' Expedite Criteria webpage.As noted by USCIS, the petitioner must demonstrate that they meet at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite request. The USCIS announcement further provides that USCIS will review all expedite requests on a "case-by-case basis" and will grant requests "at the discretion of office leadership."
3. What happens to a beneficiary who is in a cap-gap extension period if the H-1B petition is not adjudicated by September 30, 2018?
F-1 status and employment authorization (if in OPT) extends until September 30, 2018for 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 the cap-gap beneficiary remain in the United States beyond September 30, 2018 while the H-1B petition is pending?
Yes, the beneficiary can remain in the United States while the H-1B application is pending.
5. If a beneficiary who is in a cap-gap extension period departs the U.S. while the H-1B petition is pending with USCIS, will he/she 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.
6. If a cap-gap beneficiary departs the U.S., can the beneficiary work remotely abroad for the petitioner?
There is no restriction on the beneficiary working abroad for the petitioning employer. The petitioner, however, will need to investigate the laws that they need to follow to legally employ and pay the beneficiary in the other country.
7. What should individuals who are in a cap-gap extension period know about the 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." The final policy memorandum establishes new USCIS policy 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. F-1 students need to be aware of this new policy and should be advised accordingly based on their own specific situation. They need to be aware that any violation of F-1 status could result in the accrual of unlawful presence. Accrual of unlawful presence, based on the new policy, may have already begun accruing for the individual as of August 9, 2018. 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.