Starting April 3, 2017, USCIS has announced it will temporarily suspend premium processing for all H-1B petitions. They indicate the suspension may last up to six months. Specific details may be found on the USCIS website. ISSS does not work with the H-1B; however, we can provide information on how this impacts our F-1 students on Optional Practical Training and how the Cap Gap may be impacted.
What is the Cap Gap?
Read the ISSS information page on the H-1B Cap Gap.
Who is affected by this suspension?
Anyone filing an H-1B petition on or after April 3, 2017. This includes those who are not typically subject to the "cap" or limit, such as people planning to work in institutions of higher education or certain non-profits.
Does this mean my employer cannot submit an H-1B petition for me this April?
Applications for "regular" processing can still be submitted. It is only the request for premium processing (i.e. "speeded up" processing) that is temporarily suspended.
The difference is that premium processing usually guarantees the petition is reviewed within about 15 days. Regular processing may take several months, currently over 10 months on average. And this is what may cause problems for some students planning to transition from OPT to H-1B this year.
The "Cap Gap" and how it would normally work.
Normally, those transitioning from OPT to H-1B would often be eligible for something called the "Cap Gap." This special provision allowed those who applied for the H-1B in a timely way to continue working, even if their OPT would expire after the H-1B was filed. For example, before the Cap Gap existed, someone whose OPT expired on May 10 had to stop working and wait until October 1 when the new H-1B would become effective. The Cap Gap permitted continuation of employment for such individuals. The amount of time these individuals could keep working varied, depending on what would happen with the H-1B application. For example:
- June 1 - applicants could automatically keep working until this date as long as the H-1B was file on or soon after April 1, even if the OPT expired after the appliation was filed. To work longer than this, applicants must have met one of the next criteria:
- July 28 - applicants who were "waitlisted" - i.e. who were put on a waiting list for a final decision - were permitted to work until this date
- September 30 - applicants who were "receipted" - i.e. whose H-1B petitions were approved - could continue working until this date, at which point the H-1B would take over on October 1.
ISSS was able to print an updated I-20 showing the OPT was extended according to the above schedule.
So what problem might I encounter?
When premium processing was available, it generally meant that applicants would be either waitlisted or receipted before June 1 (or denied). This permitted the students to continue working even after the OPT had expired.
Premium processing helped ensure that applications received in a timely way were either receipted, waitlisted, or denied before June 1, which further extended the ability to continue working after the OPT expired. Without premium processing, we do not know whether H-1B petitions can be expected to be receipted, waitlisted, or denied by June 1. ISSS is waiting for further guidance regarding expected processing times and impact, if any, on the Cap Gap. This could put continued employment using Cap Gap on hold. It may not become an issue, but to be safe ISSS strongly recommends those on OPT who know their employers will sponsor them for an H-1B this year let your employers know they should plan for the application to be received on April 3. Delaying even by a week could put your application at a disadvantage. If any future guidance becomes available on the Cap Gap ISSS will let students on OPT know.
If you are working for a "cap exempt" employer such as an institution of higher education or certain non-profit organizations, then the Cap Gap does not apply to you. Your employer is able to file an H-1B for you at any time of the year, they just cannot use premium processing during the temporary suspension, and it may still take up to 10 months or longer for the application to be processed.
How will I get an updated Cap Gap I-20?
ISSS has no way to know if you are waitlisted or receipted, so we cannot produce a new I-20 until you inform us. We will need the following documentation from you, sent to firstname.lastname@example.org along with your student ID:
- if your OPT expires before your H-1B petition can be received by USCIS, then you are not eligible to continue working. However, if you were within the 60-day grace period following the end of OPT by the time your H-1B was received, then you can at least stay inside the US - without working - while waiting for a decision on your H-1B.
- if your OPT expires between the date your H-1B petition is RECEIVED by USCIS and May 31 - send ISSS a statement from your employer that an H-1B petition has been filed for you in a timely way, and proof of delivery to the USCIS showing date of receipt. Your I-20 will be extended through June 1.
- if you are waitlisted and your OPT expires before July 27 - send ISSS a copy of the wait list letter from USCIS. Your I-20 will be extended through July 28.
- if you are receipted and your OPT expires before September 30 - send ISSS a copy of the I-797 receipt notice. Your I-20 will be extended through September 30.
- if your H-1B petition is denied and your OPT is expired, your employment must terminate immediately.
The Cap Gap can be very confusing, if you have any doubts or questions please contact an ISSS advisor.