H-1B Cap Gap Ends 9/30/18 - Beware Unauthorized Employment!

Attention all employees and employers who filed an H-1B petition under the H-1B cap in April! The H-1B cap gap provisions in the regulation allow an H-1B candidate to keep working even after their OPT has expired, assuming an H-1B petition requesting change of status was timely filed while their OPT was still valid. This is a wonderful provision because in many instances it prevents a "gap" in employment authorization, between the time the OPT ends and the time the H-1B petition becomes effective. However, the cap gap work authorization ends 9/30/2018 (it ends 9/30 each year). In years past, USCIS has made premium processing available for H-1B cap cases, at least by the August or September timeframe, so that students with the H-1B petition still pending could upgrade their petition to premium processing and have the case approved before October 1. That way, they could keep working even on October 1 and later, without a break in work authorization. However, USCIS has continued the premium processing suspension for H-1B cap cases, and has extended the suspension of premium processing to other types of H-1B filings as well.

This means that if you are an H-1B candidate whose OPT has expired, and you were working pursuant to H-1B cap gap, you will not be authorized to continue working beyond 9/30/2018. If you work without authorization, this is a violation of your F-1 status and can have far-reaching negative immigration consequences, including a finding later that you have accrued unlawful presence. Please note that even though you cannot work beyond 9/30/2018, if you requested a change of status to H-1B, you may remain in the US while the petition is pending. Once the petition is approved, assuming it is approved with the I-94 card (not approved just for consular processing), you can resume working and you will be in H-1B status.

Many employers and employees in this situation are now asking what they can do to keep working. I wish I had a magic answer that would solve that problem, but unfortunately there is not one. Some H-1B candidates in this situation have asked about working on CPT from now until the time that their H-1B status becomes effective. That is a possible option, but if you pursue it, I recommend that you proceed with caution. CPT is typically used when a particular course or set of courses requires hands-on practical experience, such as an internship or externship. There are some course that truly do require this, and assuming you meet the regulatory requirements, that can be okay. However, there are schools that will bend the rules more than I feel comfortable with, and will offer "Day 1" CPT for students - this means they will offer CPT that begins the first day of the course of studies. There are narrow circumstance in which this may be appropriate, but USCIS is aware that there are universities and students who take advantage of CPT to keep working. It is possible that you would face a tough request for evidence either now or in the future, asking about whether the CPT was proper. It is possible that USCIS would find that you misused CPT and did not properly maintain F-1 status. In that case, they could also make a finding of unlawful presence, which again, could have far-reaching negative consequences for your immigration status.

These are challenging times for those trying to navigate US immigration law. If you need assistance with a family-based or employment-based immigration matter, please contact our office today to see how we may be able to assist you. Emily Sumner is an immigration lawyer in Richmond, VA but we serve clients throughout the US and around the world. Please call us at 804-396-3412 or email us at info@sumnerimmigration.com. We look forward to hearing from you!

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