FAQs about the Cap-Gap and H-1B Petitions Still Pending Adjudication

Are you and your employees still waiting for a cap-subject H-1B petition adjudication? You are not alone. Foreign nationals and their employers have been facing more uncertainty, scrutiny, and challenges over the last two years.

Since filings currently cannot be upgraded to premium processing, we may be waiting well beyond September for USCIS to complete the adjudication of these pending petitions.

Here are answers to FAQs to help you and your employees plan for an H-1B cap-gap.

What happens if an employee was in a cap-gap extension but their H-1B petition was not adjudicated by September 30 and the employee does not have any other employment authorization coverage, such as CPT, OPT, or EAD?

Unfortunately, that employee was not authorized to work as of October 1. 

Can that employee still legally remain in the US while the H-1B petition is pending?

Yes, the employee can stay as long as the petition is still pending. However, he or she cannot return to work until the petition is approved.

Can that employee leave the US while the H-1B petition is still pending?

Yes, the employee will still be eligible for H-1B status if the petition is approved.

However, the change of status request will be considered abandoned, so the employee must depart the United States and process a new visa at a US Consulate when the petition is ultimately approved.  

If that employee leaves the US, can he or she work remotely for the petitioning employer?

Yes, the employee can legally work for the petitioner while abroad and still be eligible for H-1B status if the petition is ultimately approved.

However, the employer should investigate and follow any laws related to employing and paying the employee in the other country.