Here is the problem: an F-1 student working for an employer on OPT will run out of OPT upon graduation in May. The employer may wish to continue to employ the student after graduation on H-1B. The employer should file an H-1B cap petition on April 1st to ensure the beneficiary gets in under the cap. However, the worker cannot begin working until October 1st which is the beginning of the fiscal year. Does the H-1B beneficiary have to return home between graduation and October 1st? According to a recent rule issued by USCIS, the answer is an unequivocal, no.
The H-1B cap is “reset” each fiscal year (which is Oct. 1) and the regulations allow a company to file within six months of the start of the fiscal year. Hence, April 1, 2010 is the first date to file a fresh H-1B petition. The beneficiary will be subject to the cap and depending on many factors, including the economy, she may or may not make the cut. However, if the petition is approved, the beneficiary will not be authorized to accept “gainful employment” until FY 2011, or October 1, 2010. Hence, any period of “gainful employment” undertaken by the student/employee after the OPT expires and before Oct. 1st, 2010 would normally be considered unauthorized employment.
However, under a rule issued in April 2008, the lawful status of an F-1 student who is the beneficiary of an H-1B petition and a request for change of status will be automatically extended, along with any grant of optional practical training (OPT) work authorization, until October 1 of the fiscal year for which H-1B status is being requested. This extension will allow F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1. The rule requires the H-1B petition to be “timely filed”; it does not require the H-1B petition to be approved before the automatic extensions can take effect. An application is generally considered “filed” once it is accepted for processing by USCIS.
In the context of the H-1B lottery, the petition may have been submitted on April 1st, but it will not be accepted for processing until after the H-1B lottery has been conducted. If the H-1B petition is rejected, denied or revoked, the automatic extension of status and work authorization will immediately terminate. Initially, it was unclear how the rule applies to an F-1 student who is the beneficiary of an H-1B petition that requested consular processing rather than a change of status. USCIS addressed this technical issue in subsequent written guidance issued on April 18, 2008. The agency will allow an H-1B petition filed on behalf of an F-1 student to be upgraded to request a change of status to H-1B so that the student can take advantage of the agency’s new “cap gap” rule.