H1B is pending after Oct 1 cap gap – Can I still work?
Every single H1B applicant I met in the last few days asked me this question. “My H1B is pending after Oct 1 cap gap – Can I still work?” So I am going to answer this question with few additional information.
Cap-gap extension was implemented by USCIS to assist foreign students when an F-1 student graduates, obtains an OPT for 1 year and the OPT ends the following year sometime between April and October. OPT student finds a job that sponsors him or her. As a result, the employer files the H-1B on April 1st. However, the visa won’t take effect until October 1st. If a student’s OPT expires in between April and October, they are caught in a “cap-gap”. Meaning, if their OPT expires between April and October. USCIS allows the students to work until September 30. In most cases, H1-B is approved by this date. And the student’s status changes to H1-B starting October 1.
However, this year things have taken a drastic turn. The number of requests for evidence have risen in number. Premium processing stands cancelled. It is most likely that USCIS is going to adjudicate cases after October 1. This is the reason everyone is asking : My H1B is pending after Oct 1 cap gap – Can I still work?
The answer to this question is No. Cap-gap extension ends on September 30th. You are no longer eligible to work. However, you are eligible to remain in the United States in a “period of authorized stay” based on the pending H-1B petition. (usually 60 days)
What is the solution to my problem?
Unfortunately, there is none. However, many are hopeful that premium processing will be restored in early October 3rd (Premium processing was only suspended for 6 months.).
If your H-1B is still pending after October 1, consider upgrading to premium processing.
USCIS denied my H1-B and my OPT expired. Now what?
You have a 60-day grace period from the date of denial to leave the country. During this time you are ineligible to work in the country. Make arrangements to leave the country, re-enroll in school for a new program, or look into any other visa options that will allow you to stay in United States.
Can I join another F-1 program if my H1-B is denied?
When H1-B gets denied, your record is terminated in SEVIS, making it difficult to enroll into a new program of study. This is a known technical error. You should check with a qualified immigration attorney regarding your options in this situation.
Q: My H-1B is approved, but my OPT expired, can I travel before October 1st and back?
If you want to come back on OPT the answer is no. The cap-gap extension is not available for a person who exits the country. Travel is not recommended. But if it is unavoidable, you should stay outside the country until October 1st, apply for a H-1B visa stamping at the closest American consulate. Get your visa stamped, and then can return to the U.S. in H-1B status to start working again.