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Cap-Gap to Expire for Pending FY H Petitions

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Cap-Gap to Expire for Pending FY H Petitions

September 17, 2013 | Tags: FY H | F-1

Recent F-1 graduates who are currently work-authorized based on cap-gap provisions will lose their work authorization on October 1, 2013 if their pending fiscal-year H-1B petitions are not upgraded to premium processing. WSM has been monitoring this issue and has worked with its clients to upgrade all still-pending FY H cases where work authorization derives from cap-gap, for a decision by October 1. The cap-gap provisions extend a student's work authorization and status up to October 1, but work authorization does not extend beyond that date. Lengthy delays in adjudications at both the California and Vermont Service Centers have impacted all petitions subject to the annual cap, but the ramifications are especially serious for those F-1 graduates whose Optional Practical Training has expired and who are working based on cap-gap provisions. This is known as "filling the gap" between the end of F-1 status and the start of H-1B status effective October 1. An F-1 OPT worker can remain in the United States based on the pending change-of-status FY H petition, but must be taken off payroll starting October 1 if a decision has not yet been issued. Premium processing (PP) guarantees a decision from the USCIS within 15 calendar days of filing the upgrade, although the decision can come sooner in clean-cut cases.

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