F1 students who have an H1B change of status petition pending and have been working under OPT cap gap provisions will accrue unlawful presence if they continue to work on or after October 1 unless they are otherwise authorized to continue employment.
Under the current USCIS cap gap regulations, an F1 student who is the beneficiary of a timely filed H1B cap petition with a request for change of status to H1B on October 1, will have his or her F1 status and employment authorization extended through September 30. The H1B cap gap period generally starts when an F1 student’s status and work authorization expire prior to October 1. Such qualifying student’s F1 status and work authorization are extended through September 30, unless otherwise terminated, or the H1B cap petition is rejected or denied prior to October 1.
If a H1B cap gap petition remains pending on or after October 1, such F1 students are no longer authorized to work under the cap gap regulations. Such F1 students may remain in the U.S. while the F1 OPT to H1B change of status petition is pending without accruing unlawful presence if they do not work without authorization.
F1 students with valid work authorization extending beyond September 30 may continue to work as authorized.
If you have any questions about the F1 OPT cap gap work authorization regulations or have reason to believe that you may have failed to maintain your F1 status, consult an experienced VisaPro immigration attorney today!
Dean Richards, United States
