My H-1B registration was selected in the lottery and my F-1 OPT work authorization expires soon. Does the H-1B application have to be filed before it expires??

By April 22, 2020December 2nd, 2020H-1B and E-3 Visa
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The H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations. There are a limited number of H-1B petitions that USCIS can adjudicate every year (65,000 Regular Cap petitions and additional 20,000 U.S. Advanced Degree Petitions). Every year, more petitions than these congressionally mandated amounts are submitted and therefore, the government has to run an H-1B lottery. The government uses a computer-generated random selection process to select the H-1B petitions. The H-1B lottery for this year has been completed.

If your H-1B registration was selected in this year’s lottery and you are currently working for the employer on your F-1 OPT work authorization, you may be wondering until when you can keep working for the employer/if you can stay in the U.S. until the H-1B petition is adjudicated.

Example 1

You are currently in the U.S. on F-1 OPT status and your work authorization card expires on May 20, 2020. You are working for Company X and the Company X files your Change of Status petition from F-1 to H-1B to USCIS on May 10, 2020. In this case, the cap-gap extension applies, and you will be able to keep working for the company until September 30, 2020. As long as the H-1B Change of Status petition is filed before your work authorization expires, you will be able to continue working for the company until September 30 (if your Change of Status petition remains pending or is approved).

Please note that if your petition is denied, you will have to stop working for your employer immediately. 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.

Example 2

You are currently in the U.S. on F-1 OPT and your work authorization expires on May 15, 2020. You are currently working for Company Y and Company Y files your H-1B Change of Status petition on June 1, 2020. In this case, you would not be able to work for the company after your work authorization expires (May 15). The cap-gap work authorization extension only attaches if the Company files your H-1B petition before your OPT EAD card expires.

As long as the Change of Status petition is filed within your grace period (60 days after your employment terminates), your F-1 status would be extended and you u would be able to stay in the U.S. until your H-1B petition is adjudicated.

If your Change of Status petition is denied, you would have to leave the U.S. within 60 days.

To summarize:

  • Your work authorization will be extended and you will be able to keep working for the company until September 30 only if the company files the Change of Status petition before your work authorization expires
  • Your F-1 status will be extended and you will be able to stay in the U.S. until your Change of Status application is adjudicated if the company files the Change of Status petition while you are in the F-1 status (this includes the 60 day grace period after your work authorization expires). In this case, you have to stop working for the company once your work authorization expires.

Please note that the cap/gap only applies to you if your H-1B petition was filed as a Change of status and does not apply if it was filed as Consular notification.

If your H-1B registration was not selected in this year’s H-1B lottery, please see our blog post discussing what other visa you can apply for when you click here.  If you were not selected in the lottery and your petition is still marked as “submitted” Cap Gap does NOT apply.

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