As of October 1, 2018, F-1 “Cap-Gap” Work Authorization Ends
for F-1 Students who have H-1B Petitions Still
Pending in the FY2019 Cap
According to USCIS regulations, “an F-1 student who is the beneficiary
of a timely filed H-1B cap-subject petition requesting a change of status
to H-1B on [October 1, 2018],” is eligible through the “cap-gap”
provision to have his or her “F-1 status and any current employment
authorization extended through [September 30, 2018].” The “cap-gap”
provision allows an F-1 student to fill the “gap” between
the time in which their F-1 status expires and when their filed H-1B employment
may start at the beginning of the new fiscal year (October 1st).
However, due to high caseloads, the USCIS has not been able to adjudicate
all of the H-1B petitions filed in the FY2019 H-1B Cap before October
1, 2018, the start of the new fiscal year, leaving many “cap-gap”
H-1B petitions still pending beyond the coverage of the cap-gap provision.
Since the “cap-gap” provision allows for extended work authorization
and F-1 status only through September 30th, any F-1 student who has their FY2019 H-1B Cap petition still pending
as of today risks “accruing unlawful presence if they continue to
work on or after [October 1, 2018] (unless otherwise authorized to continue
In other words, if an F-1 student (with a pending FY2019 H-1B Cap Petition)
maintains a valid OPT EAD (or other valid work authorization), they may
continue to legally work beyond September 30, 2018 for the duration of
their valid work authorization until their H-1B Petition is approved.
If an F-1 student (with a pending FY2019 H-1B Cap Petition) was only work-authorized
through the “cap-gap” provision, they must immediately stop
working, as they may accrue unlawful presence starting on October 1st.
Please feel free to contact USILAW with any questions or issues that you
may have. You may reach us via telephone at +1 (202) 618 4540 or via email at