Burr & Forman

USCIS has concluded the H-1B lottery and data entry operations for FY2018. Many hopeful petitioners and beneficiaries have already received the coveted I-797C Receipt Notice confirming their selection; however, some do not yet know their fate. Students on F-1 visas who have neither received a Receipt Notice nor a rejected petition may feel they are at an impasse. For these cases, qualifying students may continue to benefit from the automatic “Cap-Gap” extension until a rejection notice, or, more hopefully, a Receipt Notice, is received.

The Cap-Gap rule allows F-1 students for whom an H-1B petition was timely filed and who have a pending or approved H-1B petition to continue in F-1 status beyond the otherwise expired program end date or Optional Practical Training (“OPT”) end date until the start date of the approved H-1B employment. Students on OPT may continue working, and those who are not work-authorized may remain in the country, although they may not engage in employment unless work-authorization is obtained. If the petition is rejected (i.e. not selected in the lottery) or denied, the student may finish out the duration of their program, or, in the event the program end date or OPT end date has passed, enter into the 60-day grace period beginning the day after the rejection or denial date.

Still losing sleep wondering if your petition was selected? One helpful tip: Check with your bank to see if the filing fee checks have been cashed. USCIS marks the back of the check with the Receipt Number if the petition is selected. Additionally, F-1 students should check with their school advisor to ensure the automatic Cap-Gap extension has been recorded in their SEVIS record. School officials should consult with immigration counsel if unsure about Cap-Gap eligibility or how to handle a rejected or denied petition. For questions about H-1B petitions and OPT rules, please contact Melissa Azallion at Mazallion@mcnair.net or Jonathan Eggert at Jeggert@mcnair.net from McNair’s immigration team at (843) 785-2171.


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