Applicants for an H-1B visa who had with expired F-1 visas or recent graduates who worked under the Optional Practical Training (OPT) program are given an extension — known as a “cap gap” — until October 1 of the year. The “cap-gap” allows them to continue working while their H-1B employment visa petition is pending before the USCIS, and not violate any laws by doing so. However, under the Trump administration, USCIS eliminated “premium processing,” which allowed certain employment-based visas to be fast-tracked in time-sensitive cases for an extra fee, so many H-1B applicants are essentially losing their jobs come October 1, 2018 because their petitions are still pending.
Advocates are asking USCIS to end the hiatus on premium processing but the change cannot come soon enough. Now any student with an expired F-1 student visa or expired OPT who continues working for the company or working in any capacity will risk accruing “unlawful presence” and unable to adjust status even if they receive an H-1B visa. This could result in a ban from the U.S. for various amounts of time, according to new, strict policies introduced by the Trump administration earlier this year. Worse, H-1B applicants also cannot travel abroad during the limbo period, unless s/he is prepared to return to the US after the H-1B petition is approved on a new visa.
This is causing a situation where H-1B applicants who have no other status have to essentially remain unemployed in the United States and burn through their savings while waiting for their visas to be processed. There is also no guarantee or assurance that the H-1B would be approved eventually, and these former students can be placed in removal proceedings if the petition is eventually denied.
It is no doubt that polices meant to strangulate the H-1B program stem from the Trump administration’s objective under its “Buy American and Hire American” Executive Order No. 13788. At best, it is an unprecedented backlog and worst, it is a sinister attack on the integrity of the H-1B program.
Faced with this scenario, it may be a better idea for H-1B visa applicants to return to their home countries if it is feasible and await out the H-1B visa processing delays there instead of being unemployed in the United States or accrue unlawful presence here. It may also be wise to pursue other employment opportunities abroad with a company, that can enable H-1B visa applicants to come back to the United States on a different visa, such as an intra-company transferee (L visa) or extraordinary ability (O) visa. Finally, H-1B applicants who have U.S. citizen partners should consider alternatives such as marriage or the fiancé(e) visa as options if things don’t work out on the H-1B front.