Published:  

Under Trump Administration policy, those with expired F-1 student visas who are waiting for approval of a H-1B visa application can no longer work after October 1st. This "cap-gap" rule will force thousands of foreign graduates with degrees in science, technology, engineering, or mathematics (STEM) to cease working under the Optional Practical Training (OPT) program or risk accruing "unlawful presence."

OPT allows foreign STEM students to stay and work in the United States for up to 36 months after graduation. Unlike H-1B workers, foreign graduates do not need a job offer in order to apply for an OPT work permit. Over time, employers found it easier to hire foreign workers through OPT than through the H-1B visa process. That caused the program to grow exponentially – 337 percent between 2004 and 2016. It also induced employers to apply for H-1B visas so they could retain their OPT workers.

The Administration addressed the conversion from OPT to H-1B work as part of a crackdown on student visa overstays. The policy Citizenship and Immigration Services (USCIS) adopted in May says a student begins to accrue unlawful presence on the date his/her F, J, or M visa expires. But the Administration developed a rule called “cap-gap” for graduates on expired visas who are applying for H-1B status. It gave them until Oct. 1 to start H-1B employment.

USCIS’ announcement last Friday acknowledged the agency was not able to process all of the cap-gap visas by the Oct. 1 deadline. It said affected individuals may remain in the United States while their H-1B petition is pending without accruing unlawful presence as long as they do not work. Those who continue to work, however, will start to accrue unlawful presence.

The penalty for working under this scenario is deportation and banned re-entry. Those who accrue up to 180 days of unlawful presence are banned from re-entering the country for three years. Over one year of unlawful presence results in a 10-year ban.

Given the penalties, most are not expected to work. The only alternative affected individuals have is re-enrolling in classes and obtaining a new visa. That would allow them to again apply for an OPT work permit.

Updated: Wed, Oct 17th 2018 @ 11:45am EDT