CPTF1H1BOPTF1 Students working on OPT/CPT with Pending H-1B

September 19, 20180

An F-1 student who is the beneficiary of an H-1B petition and request for change of status that is filed on time may have his or her F-1 status and any current employment authorization extended until the first day of the new fiscal year.

The “cap-gap” period starts when an F-1 student’s status and work authorization expires and, unless terminated, ends on October 1, the required start date of their approved H-1B employment

Cap-gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1 for the following fiscal year, which starts October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.

Denied Petitions: If an H-1B petition filed for an F-1 student with a cap-gap extension is denied, rejected, revoked, or withdrawn, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, revocation, or withdrawal of the petition) to depart the United States.

The 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to a status violation, misrepresentation, or fraud. In such cases, the F-1 student is ineligible for cap-gap extension of status and the 60- day grace period. Similarly, the 60-day grace period and cap-gap extension of status does not apply to an F-1 student whose petition was revoked based on a finding of a status violation, fraud or misrepresentation discovered following approval. In both of these instances, students are required to immediately leave the United States.

Travel During Cap-Gap Period:   An F-1 student may generally travel abroad and seek readmission to the United States in F-1 status during a cap-gap period if:

  1. The student’s H-1B petition and request for change of status has been approved;
  2. The student seeks readmission before his or her H-1B employment begins(normally at the beginning of the fiscal year on October 1); and
  3. The student is otherwise admissible.

Please note that even if a F-1 student meets all of the requirements listed above, a U.S. Customs and Border Protection (CBP) officer always makes the final determination on whether to admit an application for admission after inspecting you at a port-of-entry. Applicants may refer to the DHS Study in the States page for a list of the documents needed to confirm eligibility for F-1 status.

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.

 

More pertinent details about USCIS policy is available at

https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-post-completion-optional-practical-training-opt-and-f-1-status-eligible-students-under-h-1b-cap-gap-regulations 

 

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

The Law Firm of Sim, Parvathaneni and Brown PLLC

3010 LBJ FREEWAY, SUITE 130 DALLAS, TEXAS 75234
+817-523-8247
LAW@SPBLAWFIRM.COM

Follow us:

FREE CONSULTATION

Goldenblatt Law Firm SRA ref 669401. Calls may be recorded for quality and training purposes.

Copyright © Goldenblatt 2019

%d bloggers like this: