How to Handle Employees on Cap Gap

            We’ve reached that time of the year again where employers of foreign student workers must navigate their employee’s work authorization while their H-1B quota petition is pending. Unfortunately, long wait times have become the new normal under the present administration. During this time period many employees, currently working on OPT or Stem-OPT, have their work authorization expire. However, in certain scenarios these employees are able to continue working while their selected H-1B petition is being adjudicated. This is possible because of the Cap Gap Extension.

            If an individual has a timely filed H-1B petition that is seeking a change of status to H-1B they may be eligible for a Cap Gap extension if their current work authorization expires on or after the first week of April. This will allow the employee to continue legally working in the United States until September 30th. After this time, if the individual’s case is still pending with USCIS they may remain in the United States but are not authorized to work. It is recommended during this time that the employee obtain a Cap Gap I-20 to document their F-1 status extension.

            So, how should an employer handle an employee on Cap Gap? The employee should continue working subject to their prior work authorization, either OPT or Stem-OPT, until September 30th. For I-9 purposes, the employer must reverify employment using the expired EAD and the Form 1-20 endorsed by the DSO recommending cap-gap. If the employee’s pending H-1B has not been approved close to this date the employer may want to consider upgrading the petition to premium processing to ensure no gap in work authorization occurs. Additionally, if the H-1B petition is denied prior to September 30th the employee must stop working when the case is denied. The Cap Gap extension can also end if the employer terminates the employee or the H-1B petition is rejected. If this occurs the employee is not permitted to continue working until September 30th, unless they have obtained new work authorization.

            In the past our firm has encountered scenarios in which H-1B petitions have not yet been adjudicated by September 30th for employees who were working subject to Cap Gap. Some of these employees, rather than ceasing work until the approval of their H-1B, choose to enroll at a new school in order to participate in Day 1 CPT. Our firm does not recommend this action as it can lead to status issues down the road as well as a potential RFE being issued on maintenance of current F-1 status in relation to the pending H-1B petition. To avoid this issue an employer should upgrade Cap Gap cases to premium processing well before the end of September to ensure the employee does not resort to Day 1 CPT.

            While the Cap Gap extension is beneficial to both employers and their employees an employer should always be mindful of which of their employees is currently working subject to it. It is recommended that employers prioritize the adjudication of these individuals’ cases early in the quota process to avoid any scenarios that would lead to unauthorized work or status violations. If you are uncertain about how to handle an employee’s pending quota petition please contact an attorney at Reddy & Neumann.

By: Justin Rivera

Justin is an associate attorney at Reddy and Neumann.  He practices immigration law with an emphasis on H-1B visas.