What Options Does One Have If H1B Is Still Pending After October 1?

What-Happens-if-My-H-1B-is-Still-Pending-After-October-1st

If you are in F-1 status with an OPT card that expired between April and October and have filed a change of status to H-1B that was selected in the lottery, you are eligible for the automatic cap gap extension of your OPT. This allows you to continue to stay in the United States and work until September 30th, with the idea that your H-1B would be approved and start on October 1st. But, what happens if your H-1B is still pending on October 1st?

Your cap gap extension ends on Sept 30th, so you must stop work and will begin your OPT grace period of 60 days at the end of your F-1 stay starting on October 1st. You can remain in the United States during this 60-day grace period, but cannot work. The grace period ends on November 29th. From that point, you would no longer be in F-1 status (unless you have enrolled in a new program and obtained a new I-20 to continue your studies). Once your F-1 status ends, you may still remain in the United States based on your pending H-1B change of status request. Beginning November 30th, you would be in a period of authorized stay (often referred to as POSABAG) and can remain in the U.S. without working until a decision is made on your H-1B petition. If the petition is approved, your status will change to H-1B. If the petition is denied, you will be out of status from the date of denial and cannot attempt to change status to any other type of visa at that point. If you are planning to file a change of status to any other type of visa that you qualify for as a backup plan, this should be filed before your grace period ends.


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You also have the option of traveling and waiting outside the United States for your H-1B to be approved. There are two parts to every H-1B petition: 1) the petition itself where the employer proves that he job offer is a specialty occupation and you are qualified for the job, and 2) the request related to your status, such as a change of status, extension of status, or consular processing. If you leave the United States while a change of status request is pending, the change of status portion of the petition will be denied automatically for abandonment. The petition itself will continue to be adjudicated as normal. If the petition is ultimately approved, you would then apply for an H-1B visa stamp at the consulate and then return to the U.S. in H-1B status to begin work again.

It may be useful to see an example of how this works:

Suppose Mrs. Worker’s employer has filed a H1B petition in the lottery requesting a change of status from F1 to H1B and it was selected. Mrs. Worker’s OPT STEM extension expires on July 4th. Because her H-1B was selected and was filed as a change of status, she is eligible for the automatic cap gap extension of her OPT. Mrs. Worker can continue working from July 5th through September 30th. She remains in the United States after September 30th based on the pending H-1B but stops working. She takes no action to continue her F-1 status and does not file any application to change to another status. She will be in her F-1 grace period from October 1 through November 29th. Whenever her H-1B is approved, her status will change to H-1B.

But what if her H-1B is denied on October 15th?

Assuming the denial was not based on a failure to maintain F-1 status, she is still in her grace period at the time of the denial and she can remain in the U.S. until November 29th. During this time, she can now file a change of status before November 29th to some other visa type, such as H-4. Or, she may be able to enroll in a new program with classes starting in January to continue her F-1 status and obtain a new I-20 before November 29th. This will depend on whether her SEVIS record was terminated when the H-1B was denied.

What if her H-1B is denied on December 15th?

Since she did not obtain a new I-20 or file a change of status to some other visa category, she was in a Period of Authorized Stay from November 30th through December 15th. Beginning December 16th, she will be out of status and must depart the country.

What if her employer filed an appeal or MTR after the denial?

Be aware that an appeal or MTR does not keep you in status and does not authorize you to work while it is pending.

What if her H-1B is still pending and she leaves the country on December 24th?

The H-1B petition will continue to be processed. The change of status portion will be automatically denied. Assuming the H-1B is approved, her employer will receive an I-797 approval notice without a new I-94 at the bottom. Mrs. Worker will then submit her DS-160 visa application and schedule a visa interview at the consulate to obtain the H-1B visa stamp in her passport.

What if Mrs. Worker filed a change of status to H-4 on November 1st?

Beginning November 30th, Mrs. Worker will be in a Period of Authorized Stay both on the basis of the pending H-1B and the pending H-4. If the H1B gets denied on December 15th, she can continue to remain in the country based on the pending H-4 as long as her spouse continues to maintain his H-1B status.

These are the most common scenarios that come up after October 1st for those with the cap gap. What other questions do you have about the transition?

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