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For many F-1 students, selection in the H1B cap is welcome news. However, because H1B employment typically begins after the expiration of many students’ F-1 status or Optional Practical Training (OPT), a gap can arise between the end of F-1 employment authorization and the H1B start date. This period, commonly referred to as “cap-gap,” can create uncertainty for both employers and foreign nationals.

To address this issue, the U.S. Department of Homeland Security (DHS) provides an automatic extension of F-1 status (and, in many cases, employment authorization) for qualifying students who are the beneficiaries of timely filed H1B petitions requesting a change of status.

This article reviews the current cap-gap provisions, discusses eligibility requirements, explains the scope of the available benefits, and highlights practical issues employers and F-1 students should consider during the transition from F-1 to H1B status.

Current Duration of Cap-Gap Protection

Under the current regulations, eligible F-1 students receive an automatic extension of their F-1 status, and, if applicable, their employment authorization, until April 1 of the applicable fiscal year or until the H1B change of status takes effect, whichever occurs first. The extension terminates earlier if the underlying H1B petition requesting change of status is rejected, denied, withdrawn, revoked, or otherwise no longer supports cap-gap eligibility.

This expanded cap-gap period is intended to accommodate the increasingly lengthy adjudication times associated with H1B petitions while helping employers retain valuable employees without unnecessary interruptions in work authorization.

Who Qualifies for Cap-Gap Benefits?

A student generally qualifies for cap-gap benefits when:

• The individual is in valid F-1 status.
• The employer timely files a cap-subject H1B petition during the applicable filing period.
• The H1B petition requests a change of status from F-1 to H1B.
• The petition is filed while the student remains eligible for cap-gap protection.

Students whose H1B petitions request consular processing, rather than a change of status, are not eligible for cap-gap benefits. Cap-gap protection is available only when the H1B petition requests a change of status from F-1 to H1B.

Extension of F-1 Status Versus Employment Authorization

The cap-gap rule does not provide the same benefit to every F-1 student. It is important to distinguish between an extension of F-1 status only and an extension of F-1 status with OPT employment authorization.

Students whose OPT or STEM OPT employment authorization remains valid at the time the qualifying H1B petition is filed generally receive both:

• an extension of F-1 status; and
• an extension of employment authorization.

Students whose academic program of study or OPT has already expired but who remain within their F-1 grace period generally receive only an extension of F-1 status. They may lawfully remain in the United States during the cap-gap period but are not authorized to work unless and until H1B status becomes effective.

Understanding this distinction is essential, as employers should verify not only that a student qualifies for cap-gap protection, but also whether employment authorization continues throughout the extension period.

Denial, Withdrawal, Revocation, or Rejection of the H1B Petition

Cap-gap benefits continue only while the underlying H1B petition requesting a change of status remains pending or approved and otherwise supports cap-gap eligibility. Accordingly, if the H1B petition is rejected, denied, withdrawn, or revoked before the H1B change of status takes effect, the student’s cap-gap extension terminates.

In most cases, the student is eligible for the standard 60-day F-1 grace period following the triggering event (or the academic program end date, if later). However, no grace period is available if the United States Citizenship and Immigration Services (USCIS) denies the change-of-status request based on a violation of F-1 status or denies or revokes the petition based on fraud or misrepresentation.

In limited circumstances, a student may be able to preserve or restore F-1 status through a SEVIS data fix. For example, if an approved H1B petition requesting a change of status is withdrawn before the change of status becomes effective, the designated school official (DSO) may be able to request that the student’s erroneously completed SEVIS record be returned to active status, provided the applicable requirements are met.

Travel During the Cap-Gap Period

International travel during the cap-gap period can create significant complications. Students relying on cap-gap protection generally should not travel internationally during the cap-gap period. Departing the United States while relying on a pending change-of-status request can create significant immigration complications and may eliminate eligibility for the automatic extension of employment authorization. Students should consult experienced immigration counsel before making any international travel plans.

Practical Considerations for Employers and Students

Employers and F-1 students should monitor the status of the H1B petition throughout the adjudication process as a rejection, denial, withdrawal, or revocation may immediately affect both immigration status and work authorization.

Employers should ensure that human resources understand when cap-gap employment authorization applies and when it ends. Employers also should ensure timely completion of any required Form I-9 reverification based on the employee’s continuing employment authorization. Students should remain in contact with their DSO and immigration counsel to confirm that their records properly reflect any cap-gap extension.

Conclusion

The cap-gap rule can provide critical status and, if applicable, employment continuity for qualifying F-1 students transitioning to H1B status. Because eligibility and the scope of the benefit depend on the student’s specific circumstances, the type of H1B filing, and the continued pendency or approval of the underlying H1B petition requesting a change of status, employers and students should consult immigration counsel if questions arise regarding status, work authorization, travel, or the effect of any action taken on the H1B petition.

 

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Trends in green card adjudication after the 21.May.2026 USCIS memo, including from interviews and requests for evidence (RFEs), are discussed by Murthy Law Firm attorneys in the July 2026 podcast.

The MP3 is available here and soon can be found in the archive of our podcasts and teleconferences on iTunes. Find more topics under the MurthyAudio tab on our homepage.

 

 

         

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Answer

AC21 portability, in part, requires that the I-485 application must have been pending for at least 180 days, and the I-140 petition remained approved through that point. If the employer withdraws the I-140 before the I-485 has been pending for 180 days, then the requirements for AC21 portability are not met. (08.Jul.2026)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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USCIS extended TPS-related work permits (EADs) to July 10, 2026 for Haiti, Syria, Burma, Somalia, Yemen, Ethiopia & South Sudan. It’s a temporary placeholder for I-9/E-Verify/SAVE while lower courts implement the Supreme Court’s Mullin v. Doe ruling, not an official termination date. Check the USCIS TPS pages for updates.

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New USCIS proposed rule implements the 2022 Reform & Integrity Act: ends the “troubled business” pathway, expands fraud-detection/revocation power, tightens regional-center oversight, regulates promoters. 60-day comment period. More info.

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A person living in the United States on a visa may hear terms such as “out of status,” “authorized stay,” and “unlawful presence.” Although these phrases can sound similar, they have distinct legal meanings. Understanding the difference can be important, because it may affect whether a person can continue pursuing immigration benefits or face serious immigration consequences.

Lawful Status: Following the Rules During your Stay

A person generally is in lawful status when two conditions are met: (1) the individual has a valid, unexpired I-94 showing the visa category and period of admission, (2) and the individual is complying with the rules of that category. For example, someone in H1B status must work for the petitioning employer during the I-94 validity period, while someone in H-4 status generally may not work without separate employment authorization. If a person stops following the rules tied to that visa category, that person typically is considered out of status.

Period of Authorized Stay: Permission to Wait

Sometimes a person’s underlying status expires, but the government still permits that individual to remain in the U.S. for a limited time. This is known as a period of authorized stay. A common example is when a timely filed extension or change of status request is pending with the U.S. Citizenship and Immigration Services (USCIS) before the I-94 expires. Another example is when an adjustment of status application (form I-485) is pending. Although a period of authorized stay offers less protection than a valid status, during an authorized period of stay the individual may remain in the country without accruing unlawful presence, even though the original status may no longer be in effect.

Unlawful Presence: Staying in the United States Without Permission

Unlawful presence often is the most consequential concept of the three. It generally begins to accrue when a person remains in the U.S. beyond the authorized period with no other immigration process pending, when a pending application is denied, or when an immigration judge determines that a status violation has occurred. Once unlawful presence starts to accumulate, the consequences can be severe. More than 180 days can trigger a three-year bar after departure from the U.S., and one year or more can trigger a ten-year bar. In some cases, even a single day of unlawful presence can affect the visa that was used for entry, or the individual’s ability to pursue certain adjustment-of-status options.

“Out of Status” is Not Always “Unlawful Presence”

This distinction is often where confusion arises. A person can be out of status without yet accruing unlawful presence. If someone violates the terms of their status but still has a facially valid I-94, that person may be treated as out of status while still remaining in a period of authorized stay unless and until the government makes a formal finding of a status violation. That does not mean the situation is harmless. Even if unlawful presence is not yet accruing, the person still may face removal proceedings or lose future immigration options.

The Bottom Line

Immigration law is complex. Because the differences between lawful status, unlawful presence, and a period of authorized stay are subtle and the consequences can be serious, it often is important to seek legal advice before allowing a status to lapse or making international travel plans. When questions arise, the attorneys at the Murthy Law Firm are available to consult and help navigate the complex rules that govern the status of foreign nationals.

 

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Are you looking for a firm that will appreciate your skills, utilize your knowledge, recognize your talent, and encourage your growth? The Murthy Law Firm is always looking for attorneys to add to our dynamic team.

The Murthy Law Firm is dynamic and fast-paced, with high standards regarding integrity, work ethic, and quality. Successful candidates will join colleagues who are easy to work with, all supported by cutting-edge technology and top-notch legal and administrative staff in a congenial atmosphere.

Salary & Benefits
Salary and benefits are commensurate with experience and abilities.

How to Apply
Click HERE to view our current openings. All communication is treated in confidence. EEO.

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Are you looking for a firm that will appreciate your skills, utilize your knowledge, recognize your talent, and encourage your growth? The Murthy Law Firm is always looking for attorneys to add to our dynamic team.
The Murthy Law Firm is dynamic and fast-paced, with high standards regarding integrity, work ethic, and quality. Successful candidates will join colleagues who are easy to work with, all supported by cutting-edge technology and top-notch legal and administrative staff in a congenial atmosphere.

Salary & BenefitsSalary and benefits are commensurate with experience and abilities.

How to Apply
Click HERE to view our current openings. All communication is treated in confidence. EEO.

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Answer

The law requires the EB5 investment amount to be adjusted for inflation starting January 1, 2027 and again every five years thereafter. The exact amounts have not yet been announced, but both the standard investment amount and the reduced amount for investments in targeted employment areas (TEAs) and infrastructure projects are expected to increase, regardless of whether the investment is made through a regional center. (30.Jun.2026)

Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.

 

 

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The Supreme Court ruled today against Trump’s executive order seeking to end birthright citizenship, relying on a long-settled understanding of the 14th Amendment and federal law to affirm that anyone born in the U.S., with very limited exceptions, is a citizen. It’s the second major Trump second-term policy struck down by the Court, following the tariffs ruling in February.

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On 25.Jun.2026, SCOTUS ruled 6-3 in two immigration cases. In Mullin v. Doe, it held that TPS termination decisions are not subject to judicial review, clearing the way to end protections for ~350K Haitians and ~6K Syrians. In Mullin v. Al Otro Lado, it held migrants on the Mexican side of the border have not “arrived in” the U.S. and cannot claim asylum, reviving border “metering.” Both decided by limiting courts’ power to review, not by endorsing the policies.

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In a decision with real consequences for lawful permanent residents (LPRs) who travel internationally, the U.S. Supreme Court ruled on 23.Jun.2026, that a border officer does not need clear and convincing evidence that a green card holder committed a crime before treating that person as an applicant for admission. The 6-to-3 decision in Blanche v. Lau, No. 25-429, makes it easier for the government to channel returning green card holders with criminal histories into the more difficult inadmissibility track, where they can be paroled into the country, detained, or placed in removal proceedings in which the burden of proof falls on the individual rather than on the government.

Background

As a general rule, an LPR returning from a trip abroad is treated as already admitted and is not regarded as “seeking an admission” to the United States. The law lists six narrow exceptions. One of them, subsection (C)(v), allows the government to treat a returning LPR as seeking admission if the person “has committed” an offense described in INA Section 212(a)(2), which includes a crime involving moral turpitude (CIMT).

This case arose when Muk Choi Lau, a lawful permanent resident, was charged in New Jersey with trademark counterfeiting and then traveled to China. When he tried to reenter at John F. Kennedy International Airport, the CBP officer did not treat him as already admitted. Instead, citing the pending charge, the officer paroled him into the United States under INA Section 212(d)(5)(A) while his criminal case played out. Lau later pleaded guilty, and the government placed him in removal proceedings on inadmissibility grounds. The Second Circuit Court of Appeals sided with Lau, holding that a border officer needed clear and convincing evidence that the LPR actually committed the crime before downgrading the person to “seeking admission,” and that a pending charge alone was not enough.

What the Court Held

The Supreme Court reversed course on that point. Writing for the majority, Justice Thomas held that the INA does not impose any clear and convincing evidence requirement on a border officer before deeming a returning LPR an applicant for admission. The Court explained that while the statute carefully assigns burdens of proof in removal hearings, it places no comparable evidentiary standard on the officer making the initial, on-the-spot determination at the port of entry.

The Court described the process as a two-step framework. At the first step, at the border, the government need only have a basis to conclude that the LPR committed a qualifying offense in order to treat the person as seeking admission rather than already admitted. At the second step, in the removal hearing itself, the government still must prove the case to remove the person, and that is where the heightened proof and the conviction (or admission of the conduct) come into play. The Court emphasized that the statute requires only that the LPR “committed” the offense to trigger the exception, not that the person already be convicted. As the majority put it, “One does not commit a conviction.” The Court declined to follow contrary footnote language from its earlier decision in Vartelas v. Holder, concluding that the plain text of the statute controlled.

Importantly, the Court did not decide whether Lau’s trademark counterfeiting offense is in fact a crime involving moral turpitude. It vacated the Second Circuit’s judgment and sent the case back for that question to be resolved, which means Lau still may prevail on remand if the offense is found not to qualify.

What this Means for Green Card Holders

The practical takeaway is significant. The classification of a returning LPR as “seeking admission” is not a mere formality. It determines which removal track applies, and the two tracks are very different.

If a returning resident is treated as already admitted, the government may pursue removal only on deportability grounds, where the government carries the burden of proof. If, instead, the resident is treated as seeking admission, the government proceeds on inadmissibility grounds, where the burden shifts onto the individual to prove admissibility. Inadmissibility charges can also reach a broader set of offenses and lack some of the time limits that apply on the deportability side. As a practical matter at the airport, a resident reclassified in this way may be paroled into the country, issued temporary evidence of status in place of the physical green card, detained, or referred to immigration court.

After today’s decision, CBP officers have clear authority to make that reclassification based on a pending charge, a prior conviction, or other indications that the traveler committed a qualifying offense, without first meeting a heightened evidentiary standard at the port of entry.

For green card holders, the key cautions are these. International travel carries elevated risk for any LPR who has a criminal charge, a conviction, or even an arrest in their history, including older or seemingly minor matters that might be treated as crimes involving moral turpitude. Whether a particular offense qualifies as a CIMT is a technical and frequently contested question. Any green card holder with a criminal record, including pending charges or matters they believe were resolved long ago, should consult an experienced immigration attorney before traveling abroad and before reentering the United States, and should understand their rights at the port of entry.

Conclusion

Blanche v. Lau strengthens the government’s hand at the border and lowers the practical threshold for treating returning permanent residents with criminal issues as applicants for admission. It does not change the substantive grounds of inadmissibility or remove the government’s ultimate burden in the removal hearing itself, but it does shift the leverage and the procedural posture in ways that can be difficult to undo once a traveler is reclassified. The Murthy Law Firm will continue to monitor developments, including the proceedings on remand and any agency guidance that follows. Green card holders with any criminal history are strongly encouraged to seek individualized legal advice before international travel.

 

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Answer

A “U” on the Visa Bulletin means the category is unavailable because all available immigrant visa numbers for that fiscal year have been used. As a result, USCIS cannot approve adjustment of status applications or issue immigrant visas in that category while it remains unavailable. In addition, new adjustment applications generally cannot be filed once the category becomes unavailable. The category is expected to reopen at the start of the new fiscal year on October 1, 2026, when a new supply of visa numbers becomes available. (23.Jun.2026)

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A proposed rule issued by the U.S. Department of Homeland Security (DHS) would increase filing fees for naturalization. The rule proposes $1,330 for paper applications and $1,280 for online filings and eliminates the reduced fee for low-income households. More info.

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The U.S. Department of State (DOS) has released the July 2026 Visa Bulletin. There is forward movement in select employment-based categories, while certain employment-based categories retrogress. All cutoff dates listed below refer to the final action chart (i.e., Chart A), unless otherwise specified.

Visa Bulletin SummaryEmployment-Based, First Preference (EB1) Category

In the EB1 category, China’s cutoff date moves slightly forward to 01.Jun.2023, while India’s cutoff date retrogresses to 15.Oct.2022. The EB1 category remains current for all other countries of chargeability.

Employment-Based, Second Preference (EB2) Category

In the EB2 category, India’s category becomes “unavailable” (which means that no applications in this category can be filed after June 2026 until the category reopens). EB2 China still has a cutoff date of 01.Sep.2021. The EB2 cutoff date for all other countries remains current.

Employment-Based, Third Preference (EB3) Category

India’s EB3 cutoff date advances to 01.Jan.2014, and China’s EB3 cutoff date advances to 22.Dec.2021. The EB3 cutoff date for all other countries of chargeability also advances to 01.Aug.2024.

EB3 Other Workers

In the EB3 Other Workers category, India’s cutoff date advances to 01.Jan.2014. For China, the cutoff date remains at 01.Apr.2019. The EB3 other workers category advances to a cutoff date of 01.Mar.2022 for all other countries of chargeability.

Employment-Based, Fourth Preference (EB4) Category

In the EB4 category, the cutoff date advances to 15.Sep.2022. This cutoff date also applies to the EB4 program for certain religious workers, which has been renewed through midnight of 30.Sep.2026. After that, if the program is not renewed by Congress, it will become unavailable.

Employment-Based, Fifth Preference (EB5) Category

The EB5 unreserved category for India becomes “unavailable” (which means that no applications in this category can be filed after June 2026 until the category reopens), and China’s unreserved cutoff date advances to 01.Dec.2016. The EB5 category remains current for all other chargeability areas and for the three EB5 set-aside categories (rural, high unemployment, and infrastructure) across all countries.

Family-Based, Second Preference (FB2A and FB2B) Category

In the FB2A family-based category, the cutoff date remains at 01.Jan.2025 for all countries, except Mexico which remains at 01.Jan.2024. In the FB2B family-based category, the cutoff date advances to 22.Nov.2017 for all countries except Mexico and the Philippines.

Conclusion

We will continue to monitor and report on movement and predictions related to the monthly visa bulletin. Subscribe to the free MurthyBulletin to receive weekly updates on the latest in U.S. immigration.

 

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Answer

Yes. In general, applicants may travel internationally while their naturalization applications are pending. However, it is important to avoid any scheduling conflicts with USCIS appointments. Applicants also should ensure that any travel does not affect their ability to satisfy the continuous residence and physical presence requirements for naturalization. (16.Jun.2026)

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Judge Leo T. Sorokin denied the government’s motion to stay his ruling vacating the $100,000 H1B fee requirement. However, he granted a limited administrative stay pending a possible emergency appeal to the First Circuit, if filed by 18.Jun.2026. More updates to come.

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