Potential OPT Cap-Gap Problems After H1B is Denied, Withdrawn, or Revoked

Recent college graduates in F-1 status are sometimes able to bridge the time between the expiration of their optional practical training (OPT) and the October 1st start date of H1B status through a benefit known as “cap gap” OPT. This benefit extends the OPT period and allows students to continue to work in OPT in certain circumstances. If there is a denial, withdrawal, or revocation of the H1B petition, however, there are pitfalls that may arise.

Cap-Gap Benefit and Limitations

The OPT extension known as cap gap is based on the filing of a cap-subject H1B petition requesting an October 1st start date and a change of status for the beneficiary employee from F-1 to H1B. This benefit is intended to address the common situation in which a student’s F-1 status (with or without OPT) expires prior to the allowed start date of H1B status. If the cap-subject H1B petition is filed during the validity of the student’s OPT, the cap-gap benefit will extend the student’s F-1 status and work authorization from its expiration until October 1st of the particular year. If the H1B petition is filed during the OPT sixty-day grace period, the cap-gap benefit will extend the student’s grace period, but will not permit employment. More information on cap-gap benefits is available in the MurthyDotCom NewsBrief, OPT Cap-Gap Extensions (18.Mar.2019).

Options After H1B Denial, Withdrawal, or Revocation

If an H1B petition is denied, withdrawn, or revoked during the cap gap extension period, a student who still wishes to remain in the United States may wish to consider a transfer to a different program of study or school. In this scenario, it is important to determine if, as part of the denial, the U.S. Citizenship and Immigration Services (USCIS) has issued a determination that an F-1 status violation has occurred. If the USCIS has made such a finding, the student begins accruing unlawful presence as of the date of the decision. In addition to other consequences of unlawful presence, the student is unable to transfer to a different program of study without applying for and receiving approval of a request for reinstatement.

According to guidance issued by the U.S. Immigration and Customs Enforcement (ICE), if the petition was denied or revoked without the finding of a status violation, or if the petition was withdrawn by the employer, the student normally would have ten days of work authorization and 60 days of grace period after the date of the decision. Accordingly, the student should be able to transfer to a different program of study or to a different school as long as the transfer is completed by the expiration of the resulting grace period. It should be noted, however, that the USCIS has been silent on the issue of whether a student in this situation would be entitled to ten days of work authorization following the denial. Therefore, it is possible that working during that ten-day period could present some level of risk.

Multiple H1B Petitions may Impact Student SEVIS Record

To be eligible for cap-gap employment authorization, the student must obtain an I-20 form from the designated school official (DSO), which will have an automatic notation specifying a single receipt number of the H1B petition upon which this authorization is based. All of the student’s status information, including the information regarding the student’s cap-gap OPT extension, is tracked through the Student and Exchange Visitor Information System (SEVIS). If the H1B petition reflected in the SEVIS record is withdrawn, denied, or revoked, the student’s SEVIS record is completed.

It is not unusual, however, for an F-1 student to be the beneficiary of more than one cap-subject H1B petition (filed by different employers). Yet, the SEVIS record does not include the information on other petitions, so this completion occurs even if another petition that was filed on this individual’s behalf has been approved or remains pending. Generally speaking, a student in this situation should quickly and proactively provide the DSO with a copy of the receipt or approval notice for the alternate, qualifying H1B petition. With this, the DSO may be able to contact the Student and Exchange Visitor Program (SEVP) Help Desk and request a data fix to avoid SEVIS completion or to reactivate the student’s record.

Conclusion

The law governing cap gap and H1B petitions is complex and requires an understanding and analysis of each individual’s case and all applicable rules. Students who are affected by any type of termination of an H1B petition while on cap gap should consult a knowledgeable attorney about the possible courses of action in order to mitigate potential harm and determine the best potential options to resolve the situation. Attorneys at the Murthy Law Firm are well versed in this area of U.S. immigration law, and are available to consult on such matters.

While some aspects of immigration have changed in significant ways in the years since 1994, when we began publishing articles, there is still much that is the same. From time to time, we at the Murthy Law Firm refer our clients to select articles, like this one, which remains relevant.

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