Foreign nationals in F-1 status who are protected by H1B Cap-Gap extension rule must take special precautions to stay in status and remain protected until October 1.
For the benefit of qualifying F-1 students protected by H1B Cap-Gap extension, we present here the key doís and doníts they need to keep in mind to stay protected and maintain lawful status in the U.S.
The H1B Cap-Gap extension is terminated when the H1B petition is denied, revoked, withdrawn or rejected. This includes rejections for not making it through the H1B Lottery.
Noel is in the U.S. in F-1 status. She is working at a boutique financial services firm as a Financial Analyst pursuant to post-completion OPT. Her OPT will expire in June and her employer has filed the H1B Cap petition on her behalf and it was picked in the lottery. Noel would like to attend her cousinís wedding in Italy in August. Her H1B petition has not been approved. Can Noel travel to Italy and come back to work for her employer under H1B Cap-Gap?
No, Noel, will not be able to travel to Italy and re-enter in F-1 status, even if her F-1 visa is still valid and she will not be able to resume her job. Because the H1B petition is still pending and Noelís OPT has already expired, if she leaves, she loses her USCIS Cap-Gap protection. If Noel decides to travel to Italy in this scenario, she will need to wait outside the U.S. until the H1B is approved and must get the H1B visa stamp in her passport from a U.S. Consulate.
Is the scenario changed if the H1B petition is approved before her trip?
No, the scenario is not changed even if the H1B petition is approved before the trip. Because Noelís OPT has already expired, she cannot return to the U.S. in F-1 status to resume her employment if she leaves.
Mauro graduated from a U.S. university with a Bachelorís degree in Computer Science. He is currently working at a software development firm pursuant to valid F-1/OPT status. His OPT expires on July 30. His employer has filed an H1B Cap petition on his behalf and it has been chosen in the Lottery. Mauroís Computer Science degree is a STEM degree. As such, he is eligible for a 24-month STEM extension but he chose not to file the STEM extension because he was able to continue working under OPT Cap-Gap. The petition is still pending on August 15. At this time, Mauro finds out that his company may be downsizing and that he may lose his job. He knows that if he loses his job before the H1B is approved, the company may withdraw his H1B. This will result in his Cap-Gap protection being terminated. Mauro already has a job offer from another company. What can Mauro do to continue working in the U.S.?
As Mauroís H1B petition is still pending, he continues to be protected by H1B Cap-Gap and is still considered to be in valid F-1/OPT status. As such, he can still file the STEM OPT extension. If he files the STEM OPT Extension, he will be able to continue working even if the H1B petition is withdrawn.
If an employer withdraws an approved H1B petition before October 1, the student does remain in F-1 status if the status is unexpired, and may continue working pursuant to OPT if itís still valid. However, it is important to submit the acknowledgement from USCIS regarding the withdrawal or revocation to the international student advisor to ensure that the studentís SEVIS record reflects the continued student status.
NOTE 1: If the acknowledgement is received on October 1 or later, a data fix cannot be done and the student will have to file a Reinstatement (Form I-539).
NOTE 2: A student with unexpired OPT may continue working if a data fix is pending. A student cannot continue working while a Reinstatement is pending.
If the employer withdraws an approved H1B after October 1, the status has already changed to H1B. The student should stop working immediately and file for Reinstatement in order to resume working pursuant to OPT.
Alternatively, the student can decide to remain in H1B status and try to find a new employer.
If the F-1 status or OPT has expired and the October 1 effective date has passed, the individual will be out of status if the approved H1B is revoked.
Always keep in contact with the international student advisor. Make sure to notify the advisor regarding any changes in employment or about developments related to the pending H1B petition.