F-1 OPT Cap-Gap Employment Authorization Valid Only Until September 30th
Due to this year’s heavy H-1B visa demand, it is likely that USCIS may not be able to adjudicate all H-1B petitions by September 30th. As a result, there are likely to be many cases where the F-1 OPT holder is taking advantage of the OPT cap-gap rule to work after the post-April 1st OPT expiration date based on the pending H-1B petition.
Many F-1 students in this situation, however, are not aware that the OPT cap-gap rule applies only until September 30th and if the H-1B cap petition remains pending beyond September 30th, the F-1 holder would no longer be eligible to work in the U.S. under the OPT cap-gap rule (stay in the U.S. is likely to be authorized for as long as the H-1B cap petition seeking change of status to H-1B remains pending).
Am I Affected By This Rule and Am I In Danger of Losing Employment Authorization?
The first step for an F-1 OPT candidate for an H-1B cap visa is to understand whether he or she is affected by this situation. If (1) the candidate’s F-1 OPT expiration date was after April 1st but before September 30th, if (2) H-1B cap petition is still pending decision with USCIS, and (3) if the H-1B cap petition was filed requesting change of status, then it is likely that the F-1 candidate may be in danger of losing OPT cap-gap work authorization if the H-1B petition remains pending beyond September 30th.
Early Premium Processing Upgrade May be Needed to Avoid Interruption of Employment Authorization
In those cases where the H-1B cap petition seeking change of status remains pending beyond September 30th, the F-1 OPT cap-gap rule does not permit employment and the F-1 holder will have to stop working as of October 1st and wait until the H-1B petition is approved (or risk violating his or her F-1 status by engaging in unauthorized employment).
To avoid the possibility of a period of lack of employment authorization and disruption at the workplace, candidates and their employers consider a premium processing upgrade of their H-1B petition as soon as possible in order to force USCIS to make a decision within 15 days. Please note that USCIS may request additional evidence or RFE (especially if they have not already done so) on the H-1B petition in which case the employer would have to respond to the RFE and then the government would have another 15 days to provide a response.
It is September 30th and My H-1B Petition is Still Pending – What Should I Do?
Most importantly — stop working — because the OPT cap-gap employment authorization ends on September 30th if the H-1B petition is still pending as of that date. If a premium processing upgrade has not been done, it may be a good idea to do so in order to minimize the period without employment authorization and so that the candidate can get back to work as early as possible.
Conclusion
For those affected by the OPT gap-cap rule with a pending H-1B petition we recommend premium processing upgrade as soon as possible to minimize periods without employment authorization and disruption of employment. A timely and properly-filed premium processing upgrade even in late August stands a good chance to allow uninterrupted OPT gap-cap, followed by H-1B, employment authorization.