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 do’s and don’ts they need to keep in mind to stay protected and maintain lawful status in the U.S.
1. Termination of H1B Cap-Gap
The H1B Cap-Gap extension is terminated when the H1B petition is denied, revoked, withdrawn or rejected.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.
2. Consequences of H1B Cap-Gap Termination
If the F-1 student’s status or OPT have expired and Cap-Gap has been triggered, once the H1B petition is denied, revoked, withdrawn or rejected, the student will have a standard 60-day grace period that begins on the date of notification from USCIS regarding the denial, revocation, withdrawal or rejection.
If the H1B is denied, revoked, withdrawn or rejected before the actual F-1 student’s status or OPT expires, the later date will be controlling.
If the H1B petition was filed during the F-1 student’s 60-day grace period, he or she will still get an additional 60-day grace period if the H1B petition is denied, revoked, withdrawn or rejected.
Students whose H1B petition was revoked or denied because the F-1 student failed to maintain status or because fraud/misrepresentation are not entitled to the 60-day grace period and must leave the country immediately.
3. Travel During H1B Cap-Gap
Travel outside the U.S. during H1B Cap-Gap extension should be undertaken very carefully. The timing of the trip may not only affect the H1B petition but also an F-1 student’s ability to re-enter the U.S.
Travel While F-1 Status/OPT Has Not Expired
- If the H1B petition is approved, the F-1 student may travel and re-enter the U.S. in F-1 status as long as the entry is before October 1.
- If the H1B petition is pending, the Change of Status will be abandoned when the F-1 student leaves the U.S. Upon return, the student will not be protected by Cap-Gap once F-1 status expires.
Travel While F-1 Status/OPT Has Expired And H1B Cap-Gap Protection Has Been Triggered
- If an F-1 student travels outside the U.S. during H1B Cap-Gap and the underlying F-1 status has expired, then the foreign national may only return after obtaining the H1B visa. Entry to the U.S. can take place no more than 10 days prior to the H1B start date.
USCIS may inadvertently approve an H1B Change of Status request even after the beneficiary has traveled out of the country while the H1B petition was pending.
If the F-1 student was able to return to the U.S. in F-1 status, regardless of the approval, the F-1 student should treat the Change of Status has being abandoned. This means that the F-1 student should assume that they do not have H1B Cap-Gap protection once OPT or F-1 status expires.
Additionally, in order to activate the H1B, the foreign national must leave the U.S. and obtain an H1B Visa Stamp at a U.S. Consulate and then re-enter the U.S.
My Case Scenario
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 cousin’s 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 Noel’s 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 Noel’s OPT has already expired, she cannot return to the U.S. in F-1 status to resume her employment if she leaves.
4. STEM OPT And H1B Cap-Gap Extension
Many individuals who are completing their OPT and are in a period of H1B Cap-Gap are also eligible for the 24-month STEM OPT extension.
Normally, an OPT holder must apply for the STEM OPT Extension before OPT expires. F-1 students who are in OPT Cap-Gap and are eligible for STEM OPT have 2 options:
- File the STEM OPT extension before the OPT expires; OR
- File the STEM OPT extension during the Cap-Gap extension period, even if the actual EAD has expired.
It’s important to note that, once Cap-Gap is terminated, the STEM OPT Extension cannot be filed unless the original OPT is still valid.
DID YOU KNOW?
There are no restrictions in having the STEM OPT Extension and an H1B Change of Status request pending simultaneously. If the H1B is approved, regardless of the status of the STEM OPT application, the student’s status will change to H1B on October 1 or the date of approval, whichever is later.
My Case Scenario
Mauro graduated from a U.S. university with a Bachelor’s 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. Mauro’s 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 Mauro’s 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.
5. Consequences of Withdrawal, Revocation of Approved H1B Petition
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 it’s 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 student’s 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.
Qualifying F-1 students, while enjoying the benefits of being allowed under the H1B Cap-Gap extension rule to remain in the U.S. in legal status while an H1B Cap case is pending, must also keep in mind and adhere to the various obligations imposed upon them under the rule to enable them maintain lawful status at all times and continue to stay protected under the Cap-Gap provisions.
If you have any questions regarding maintaining lawful status, or need help filing an H1B visa petition, contact our experienced immigration attorneys today for a FREE H1B Visa Consultation.
We’ll talk through your priorities and recommend strategies based on our attorneys’ near 100% success rate.
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