Impact of Extended Premium Processing Suspension on F-1 Students in the Cap-Gap
With October 1st quickly approaching, F-1 students currently in the cap-gap should be aware of how they may be impacted by the extended premium processing suspension for H-1B cap-subject petitions, that is expected to last until February 19, 2019. Here’s why:
An employer may file a cap-subject H-1B petition beginning April 1st, for H-1B employment to begin no earlier than October 1st. Therefore, if your H-1B petition was selected in the lottery and your OPT expires after April, but before October, a gap is created between the end of your F-1 status and the start of your H-1B status.
Current regulations have cured this issue for OPT students who request a change of status from F-1 to H-1B in the cap. Specifically, regulations allow OPT students with pending or approved cap petitions to fill-in the “cap-gap” by automatically extending F-1 status / OPT work authorization through September 30th. This allows the student to work beyond the expiration of their OPT work authorization. Ideally, the change of status from F-1 to H-1B will occur on October 1st, with no disruption in employment. Of course, things don’t always go as planned.
Impact of Extended Premium Processing Suspension:
The suspension of premium processing until February 19, 2019 coupled with longer processing times and difficult Requests for Evidence (RFE), can create a headache for OPT students who are working based on the cap-gap extension. These individuals may now be waiting beyond September 30th for USCIS to adjudicate pending H-1B cap-subject petitions.
If your H-1B petition is not approved by October 1st, you may remain in the U.S. while the H-1B petition is pending, but you will have to stop working until your petition is approved. Any disruption in employment is difficult on both the employee and the employer.
In addition to employment disruption, F-1 students with pending H-1B applications beyond October 1st have an additional burden on their shoulders. One of the most unsettling potential consequences of the expanded premium processing suspension results from the August 09, 2018 USCIS policy memo regarding accrual of unlawful presence for F-1 students. As per the August 9th memo, if USCIS later denies your change of status due to an F-1 status violation, unlawful presence may begin to accrue from August 09, 2018. Individuals who accrue more than 180 days of unlawful presence are subject to a 3 year bar from reentering the U.S. (or a 10 year bar if you accrue one year or more).
Without the availability of premium processing until February 19, 2019, individuals may be awaiting a decision on their H-1B petition for months, especially if an RFE is issued. So how does this all come together? For example, if your change of status request is denied after February 04, 2019 due to an F-1 status violation that occurred 1 year ago, unlawful presence may be counted retroactively from August 09, 2018. This would trigger the 3 year bar because you would have accrued more than 180 days of unlawful presence. Therefore, accrual of unlawful presence based on the new policy should be carefully considered when deciding whether to remain in the U.S. while the H-1B petition is pending or to depart and await a decision abroad.
The current administration continues to impose difficult obstacles on legal immigration. In this instance, USCIS tried to justify the suspension as an innocuous change implemented only to reduce overall H-1B processing times. But as you can see, the timing of the suspension along with the potential consequences may indicate otherwise.