F-1 STUDENTS WANTING TO PETITION UNDER H1B CAP 2020
Current regulations allow certain students with timely filed pending or approved H-1B petitions to remain in F-1 status during the time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.
What should I know if I am F-1 student and have accepted an offer for H1B employment?1. What is Timely Filed petition? "Timely Filed" means petition is filed during the H-1B acceptance
period, which begins on April 2, 2019 for Fiscal Year (FY) 2020, when the student's authorized F-1 duration of status (D/S) admission is still in effect (including any period of time during the
academic course of study, any authorized periods of post-completion Optional Practical Training
(OPT), and the 60-day departure preparation period commonly known as the "grace period").
2. Is Premium Processing (expedited processing) available for my case? Premium Processing is currently suspended until Feb 19, 2019. If USCIS opens up premium processing, the petition can be converted from regular to premium processing.
3. What happens if my petition is not adjudicated by September 30th? F-1 status and employment authorization (if in OPT) extends until September 30, 2019 for individuals in a cap-gap extension period. After this date, individuals are no longer work authorized as part of the cap-gap extension period.
4. Can I as cap-gap beneficiary remain in the United States beyond September 30, 2019
while the H-1B petition is pending? Yes, you can remain in the United States while the H-1B application is pending. BUT, you must carefully note the following guidelines provided by U.S. Immigration and Customs Enforcement (ICE):
(a) the cap gap extension of OPT [the duration of status and any employment authorization granted cannot be extended beyond September 30, if the H-1B petition filed on the student*s behalf has not been adjudicated by USCIS?
(b) If the H-1B petition is pending beyond October 1, a student can remain in the United States based on the pending change of status petition. However, a student with OPT employment authorization extended through the cap gap period must stop working until the H-1B petition is approved.
5. If I, the beneficiary, who is in a cap-gap extension period departs the U.S. while the H-1B
petition is pending with USCIS, will I still be eligible for H-1B status, if the
petition is ultimately approved? Yes, however, USCIS will consider the change of status request abandoned. The H-1B petition will convert to consular processing and the beneficiary will need to schedule an appointment at a U.S. Consulate based on the H-1B approval.
Must know about August 9, 2018 USCIS Policy Memo regarding the accrual of unlawful presenceOn August 9, 2018, USCIS published a revised final policy memorandum entitled
*Accrual of Unlawful Presence and F, J, and M Nonimmigrants* regarding the determination as to when nonimmigrant academic students (F), vocational students (M), and exchange visitors (J)
begin accruing "unlawful presence" in the United States. It is important to note that any violation of F-1 status could result in the accrual of unlawful presence. This should be considered when determining whether to await the adjudication of the pending H-1B petition in the United States or to depart the United States and await a decision abroad.