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According to the United States Citizenship and Immigration Services (USCIS), foreign nationals who currently have F-1 status with a pending H-1B petition on October 1, 2018 are at risk of accruing unlawful presence if they continue to work on or after October 1 because their “cap-gap” work authorization is only valid through September 30.

What is the “cap-gap?” Under current USCIS regulations, an F-1 student who is the beneficiary of an H-1B cap-subject petition requesting a change of status to H-1B on October 1 automatically has his or her F-1 status and any current employment authorization extended through September 30. This regulation is referred to as a “cap-gap” because it allows for a potential “gap” to be filled between the end of an individual’s F-1 status and the beginning of H-1B status.

What is “unlawful presence?” Unlawful presence is the period of time when an individual resides in the United States without being admitted or paroled or when he or she is not in a period of stay that is authorized. Depending on how long an individual has accrued unlawful presence will determine how long he or she may be barred from reentering the United States, ranging from a minimum of 3 years to permanently.

Who is potentially affected? Although USCIS has already temporarily suspended premium processing for certain types of H-1B petitions, increased demands for immigration benefits and backlogs may prevent USCIS from adjudicating H-1B change of status petitions for all F-1 students by October 1. An F-1 student with a pending “cap-gap” H-1B petition on or after October 1 will no longer be authorized to work under the “cap-gap” regulations.

What is not affected? While the “cap-gap” for F-1 students ends on September 30, they generally may remain in the United States while the change of status petition is pending without accruing unlawful presence. If an F-1 student with a pending change of status petition has work authorization that extends past September 30, he or she may continue to work.

Please do not hesitate to contact our offices for any questions or concerns you may have regarding this matter. Our offices will keep you up to date regarding any further developments.