Cap-Gap F-1 Employment Authorization Ends
Dallas, TX (Law Firm Newswire) November 27, 2018 – U.S. Citizenship and Immigration Services (USCIS) issued a notice on September 28, 2018, announcing that foreign students previously employed under an F-1 cap-gap extension were no longer authorized to work in the United States as of October 1, 2018.
As background, F-1 students who have Optional Practical Training (OPT), and for whom an H-1B employer has filed a FY2019 H-1B petition with an October 1, 2018, start date, and whose H-1B petition won the FY2019 H-1B lottery, and whose OPT expires before October 1, 2018, could continue working until October 1, 2018, by which presumably, USCIS will already have approved the pending H-1B petition. The idea was to have F-1 students then begin work for the H-1B employer on October 1.
But not this year. USCIS acknowledged that it has not been able to process cap-gap change of status petitions for all F-1 students by the October 1, 2018 deadline. USCIS stated that affected students can remain in the country without accruing unlawful presence while their H-1B change of status application is pending, as long as they do not work. F-1 students with a pending petition who have work authorization that extends past September 30, 2018, can continue employment.
“USCIS is funded by user fees, and in the H-1B context that means it is funded by U.S. employers,” said Stewart Rabinowitz of the Dallas and Frisco law firm of Rabinowitz & Rabinowitz, P.C. “Under the Trump Administration, in its Buy American Hire American Executive Order issued in April 2017, expressed open hostility to the H-1B program, and, within a matter of months for FY2018, USCIS issued Requests for Evidence or RFEs in record numbers of H-1B petitions, consuming adjudication officers’ time and delaying H-1B petition adjudication. Now in the FY2019 H-1B season, high numbers of RFEs continue. To make matters worse, USCIS has suspended its 15 day Premium Processing program for H-1B petitions.”
The ongoing suspension of USCIS’ Premium Processing service has impacted H-1B petitions for F-1 students in the cap-gap extension period. Without Premium Processing, employers across the United States have had to end the F-1 cap-gap student employment.
“U.S. employers, who have forked over thousands of dollars to USCIS in user filing fees, are frustrated for several reasons,” said Rabinowitz. “First, adjudication delay. Employers filed FY 2019 H-1B petitions on or shortly after April 1, 2018, and as of late October 2018, many U.S. employers are still awaiting a decision, which is frustrating because Premium Processing for a 15-calendar day decision for another fee is no longer available. Second, the effect of the long delay is to create uncertainty as to when USCIS will decide a case, which affects employer staff and project planning. Third, with large numbers of RFEs issued, and each RFE’d H-1B petition together with RFE responses practically require a ‘beyond a reasonable doubt’ level of proof for H-1B petition approval, increasing attorneys’ fees for each petition. Add to that the loss of cap-gap employment authorization for students after October 1, 2018, and the takeaway to employers is clear: Use the H-1B program at your peril.
This is a strange outcome for a full employment high tech economy, where demand for workers outstrips U.S. worker supply.
Where else are U.S. employers to turn?”