Certain F-1 students who have H-1B Cap petitions pending on October 1, 2018 could begin accruing unlawful presence if they continue to work on or after October 1, 2018.
F-1 Optional Practical Training (OPT) students are authorized to work pursuant to a valid Employment Authorization Document (EAD). In certain instances, a F-1 student with a pending or approved H-1B Cap petition whose EAD has expired prior to October 1, 2018 is eligible to continue working pursuant to “cap-gap” provisions, which extend a F-1 student’s work authorization through September 30, 2018. However, if the H-1B Cap petition remains pending on October 1, 2018, the student may no longer be work authorized, unless the student is otherwise work authorized. If a F-1 student is no longer work authorized and continues to work, the student may begin accruing unlawful presence as of October 1, 2018. If a F-1 student has accrued more than 180 days but less than 1 year of unlawful presence and departs the US, the student may be barred from reentering the US for 3 years. If a F-1 student has accrued one year or more of unlawful presence and departs the US, the student may be barred from reentering the US for 10 years. As such, F-1 students must take great care in being compliant under US immigration law.
A F-1 student with a pending H-1B Cap petition who is relying on the “cap-gap” provisions to extend work authorization may not continue working after September 30, 2018, unless otherwise work authorized. If the F-1 student continues to work beyond September 30, 2018, it is possible that the student may begin accruing unlawful presence. Generally, a F-1 student with a pending change of status H-1B Cap petition may continue to remain in the US while the H-1B Cap petition is pending, even if the student is no longer authorized to work in the US.
If you are on F-1 status with a pending H-1B Cap petition and believe that you may be accruing unlawful presence, please be sure to reach out to counsel immediately.
For more information on this, or any other immigration matter, please contact a member of our team at PwC Law LLP.