Let’s analyze the following scenario: You are in the U.S. on F-1 OPT status and you are working for an employer. During the cap season, your employer files an H-1B Cap Change of Status petition and the case is selected in the H-1B lottery system. Your OPT work authorization is expiring in June. If your H-1B petition is approved, the first day you can start working in H-1B status is October 1 (the first day of the fiscal year). The question then arises: Can you stay and work in the U.S. after your OPT work authorization card expired and your H-1B petition is approved by USCIS or pending.
Your OPT work authorization card expired and your H-1B petition was approved. Can you stay and work in the U.S. until October 1?
The answer is yes. If your OPT work authorization card expired for example in June and your case was approved by USCIS in May, your F-1 status and work authorization will be automatically extended until September 30 and therefore there will be no gap in your work authorization. This is called cap-gap — the immigration regulations provide a way to fill the gap between your OPT work authorization expiration and the beginning of the H-1B status.
Your OPT work authorization card expired and your H-1B petition is still pending. Can you stay and work in the U.S. until USCIS issues a decision on the H-1B petition?
The answer is yes. Even if your OPT work authorization card expired, as long as your case is still pending with USCIS, you can stay in the U.S. and work. However, because your F-1 status will only be extended until September 30, you can only work for the employer until September 30 and you cannot work past this day. In this case, you cannot work after Sept. 30th and you must wait until the petition is approved to start work. You can though, stay in the country.
Your OPT work authorization expired and your H-1B petition was denied. Does cap gap apply to you?
If your OPT work authorization card expired and your H-1B petition was later denied, you have to stop working for your employer immediately on the day the H-1B petition was denied. You will have 60 day grace period to leave the U.S. but you are not authorized to work during the 60-day grace period.
What is my case is still pending after September 30. Do I have to leave the U.S.?
If your H-1B petition is still pending after September 30, you can still stay in the U.S. until USCIS issues a final decision in the case, but you are not allowed to work after September 30.
Are there any rules as to when does my OPT work authorization card has to expire to qualify for the Cap-gap?
Yes, to qualify for a cap-gap, your OPT work authorization card must expire on April 1 or later.
Should I apply for a new work authorization card while I am on Cap-gap?
No, you do not need to apply for a new work authorization card after your OPT work authorization card expired if you qualify for the Cap-gap extension.
Do I qualify for Cap-gap if my case was filled as a Consular notification and not as a Change of Status?
No. You only qualify for the cap-gap extension if you case was filled as a change of status in the U.S.
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