Are You Accruing Unlawful Presence

On September 31, 2018, the cap-gap period for F-1 Students who have a pending H-1B petition ended. This means that as of October 1, 2018, you began to accrue unlawful presence if you continued to work, your petition was not approved as of that date, and you did not otherwise receive authorization to continue to work.

The Cap-gap is the period between the end of an international student’s F-1 status (or an employment authorization, i.e OPT )  and the start of their H-1B status. This period automatically kicks in when the F-1 student is a beneficiary of a timely filed H-1B petition. The cap gap period will typically last until the start of the next fiscal year, October 1, which is the required start date of an approved H-1B petition.

Recently, USCIS reported changes to its policies including a suspension in premium processing and how it will calculate accrual of unlawful presence. As a result, an F-1 student whose H-1B request was not approved as of October 1,2018, may have begun to accrue unlawful presence on that day if they continued working with their employer. According to USCIS, that student may lawfully remain in the United States while the change of status request remains pending.

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