OPT to H1B : OPT Expiring Before H1B Start Date

Raghuram Sukumar CPT 15 Comments

I am currently in OPT and it will end on July 20 2008. If my employer files for an H-1B Visa for me in my master’s quota and I get approved for the start date of 10/01/08, can I still stay legally in the U.S. until 10/1/08 or do I have to go back to India to get an H1B visa stamping?

Many students are trying to find answers to the above question. I’m not an attorney or an authorized person to answer the question.

However, I did my homework to research for the appropriate information and I came across a few immigration attorney websites that offered answers and explanations to the above question.

If your OPT expires ON or AFTER 8/1/08, you will be issued a change of status and an I-94. This means you will NOT be required to leave the U.S. for Consular Processing.

This is because you are allowed up to 60 days after your OPT expires to remain in a legal status in the U.S..

If your OPT expires BEFORE 8/1/08, your H-1B petition will be approved, but your change of status will NOT be approved.

You will be required to leave the U.S. and attend an American consulate for H-1B stamping before returning to the U.S. to start work on 10/1/08.

To avoid leaving the U.S., you must somehow maintain a legal status. A possible solution is to re-enroll at your school from the time your OPT or grace period expires until 10/01/08.

Students whose OPTs will expire between April 1, 2008 and July 30, 2008 are perhaps the most common types of applicants who face the timing problem outlined in the paragraph above.

In fact, most students’ OPT will expire between April and July because that time period coincides with the graduation dates of most universities, and subsequently, the beginning of the 1-year OPT status.

Holders are given a 60-day “grace period” of legal status after the expiration of their OPT. Thus, an OPT that expires on July 31 will effectively be good until September 30.

Applicants with OPTs that expire between April 1 and July 30 will not be in a valid non-immigrant status by September 30. Therefore, a request for a change of status for H-1B on October 1 will not be granted.

In some instances, USCIS officers may use their discretion to grant a change of status even if there is a gap between the expiration date of previous status and the starting date of the new H-1B.

EXAMPLE

Consider the example of Sally, whose F-1 OPT will expire on July 15, 2008. With the 60-day grace period, Sally has legal status until September 15, 2008.

She will be out of legal status two weeks before her H-1B takes effect. On April 1, when Sally files her H-1B application, she will not be able to show that she will be in a legal status on September 30. Sally has two options:

  1. She can stay in the U.S. until September 15 and then travel to her home country where she can apply for an H-1B visa to re-enter the U.S. This will usually work, but it is expensive.In addition, any delays in processing the visa may prevent Sally from beginning her U.S. work on time.
  2. In order to change status in the U.S., she can abandon her current F-1 OPT and maintain a legal status by enrolling in another F-1 program or change to another status, such as B-2. This will help her keep a legal status until the 1st of October.
    Enrolling in another F-1 program is a process that can be handled by the school. It does not require filing with the USCIS and is a relatively quick, practical option.However, Sally must file for her new status before April 1 in order to include the evidence of her continued status in her H-1B application.
    According to USCIS regulations, once Sally can obtain her new I-20 by enrolling in the new F-1 program, her old F-1 program will end and her OPT will become invalid for the remaining approved period.She will not be able to work from April 1 until October 1, which will result in thousands of dollars of lost wages.

Conclusion

The H-1B visa situation for the fiscal year 2008-2009 is problematic. The demand for H-1B visas will exceed the supply by a factor of two or three times.

In these conditions, applicants can only file on time (April 1, 2008) and cross their fingers for good luck.

In addition, the timing issues caused by premature OPT expiration and the need to show valid status on September 30, 2008 can add another burden to the already-stressful H-1B situation.

Zhang and Associates, PC, is available to answer your individual H-1B questions and to help you prepare a filing strategy that will maximize your chances in obtaining this sought-after visa at a minimum cost.

Again, I have listed the reference of the sources for the above two examples. If you are still in doubt, consult an immigration attorney.

If any of your friends are graduating and are looking for similar information, I would appreciate if you can forward this link to them.

What’s next: You should now have clear understanding about OPT Gap period, but ultimately it all comes down to finding a job.

I have written a detailed guide that students can use, networking to search for jobs. It’s a highly-effective guide to boost your chances of getting hired.

Comments

  1. As an immigration attorney, just wanted to weigh in with my comments on your post. The summaries of the 60 grace period issues are correct. The only thing I would add is that two years ago, USCIS issued a policy to help students stuck in this “cap gap” problem, essentially allowing them to get automatic changes of status despite the gap. USCIS did not implement this policy last year. We are hopefull that USCIS will reimplement this policy this year to help those with this issue.

    Marc Topoleski, Immigration Attorney
    Ellis Porter
    http://www.ellisporter.com
    http://www.h1bcapinfo.com

  2. @Marc:

    Thank You Marc. I really appreciate your comment. This would give students who are reading this article, much confidence about validity of the immigration/visa issue.

  3. I am graduating on June 20 2008 and will be starting my OPT on Aug 20 2008. Thus OPT expires on Aug 19 2009. Will i be eligible to stay in the USA between Aug 19 and Oct 1 2009? Will i be having a problem to get my H1B?

  4. @ Miraj : As per comments from the article above, your OPT expires on Aug 19 2008 and adding 60 days to it will be Oct 18 2008, which is well withing 60 day Grace period, so you shouldn't have any problem. But you will not be able to work during that gap period, but you can work from Oct 1st 2008. I'm referring to the articles from Attorneys above. Good Luck. Read my article on Job Search guide, it will help you to get a job much faster.

  5. Raghu — Excellent article!!! I would like to add one more point to Raghu's points. Check your I-20 expiration dates as well. Some universities are very rigid, they won't let you extend that. If this is the case with you, then you need to have other plans like, enrolling for another Masters or Ph.D.

  6. Thank you for this great article!

    I just have a few questions about the article, since I am currently going through the same problem.

    1. If my OPT expires on/after Aug 1st and will be issued a change of status, does that mean I work during the grace period?

    2. My OPT is valid from 08/07/07 and expires 07/20/08, which is not a year, is this unusual and should I be contacting USCIS?

    3. I understand from the Q&A section that working is not permitted during the grace period. But in the example, the downside to Sally's second option is that "She will not be able to work from April 1 until October 1, which will result in thousands of dollars lost of wages." Does this mean in the first option, Sally can work until September 15? If not, why would one stay in the country during the grace period?

    4. I don't have a job yet, is it pertinent that I find a job by and apply for an H-1B on April 1 to be granted an H-1B visa for 2008-09? I thought that applications for an H-1B visa could only be filed on Oct 1.

    5. Has anyone heard anything about the USCIS policy to lessen the "cap gap" problem with automatic changes of status for 2008-09?

    6. I am considering contacting an immigration attorney (or Zhang & Associates), what is the typical cost for an attorney and what can they do beyond consultation?

    I look forward to reading your answers! Thank you so much!

  7. Hi Scholars,

    I just want to be clear a little more.

    Suppose if I file for H-1B in April through any company, and I gets approved. Within how many days I need to go for stamping of H1B?.

  8. My OPT expires on MAY 17, 2009. If I enroll in school from august, can I stay in US and ocntinue to work until my H1-B status has been approved or do I have to leave US?

    Thanks

    Ritika

  9. I will be done with my MS in S/W Engineering by 10th Oct 09 and will be applying for OPT 3 months before that. But I am also applying for H1-B Visa this year in the Open Quota of 65,000.

    If my H1-B is approved. Will it automatically start from 1st Oct 09 ?

    Is it upto me to opt for OPT or H1-B at that point of time?

    Can I remain on OPT status until I get project and once I get a project then change my status to H1 ?

  10. My OPT has expired. During my 60 day grace period, can I enroll in a new study program and be eligible to stay in the US?

  11. Dear Mr.Raghuram Sukumar,

    Please archive this page. Looks like it has outdated info. USCIS says a different definition of “Cap Gap”. This 60 day time is ‘grace period’ to pack your things and move out of US if you happen to go out of status after OPT. It is not ‘Cap Gap’. Please refer to Q3 and Q4 here:
    http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

  12. COULD YOU PLEASE HELP ME….

    I am on F1 visa status residing in US and have been working on full time OPT. My OPT will end on February 5, 2016

    My H1-B petition will be filled in my 60-days grace period on April 1, 2016. Grace period will end on April 5, 2016.

    Basically it means that I will remain in the US until October 1, 2016 if the H1B petition is approved. However, I may not work from February 5, 2016 (OPT end date) till October 1, 2016 (8 month!)

    There are schools that offer CPT from the first day and I don’t want to have a break at work. Can I be enrolled as a full time student and continue work legally with CPT from February 2015 – October 2016 while waiting for my H1b till October 1?

    THANK YOU!

  13. Hi,
    My OPT expired by oct 1st now my h1b is still shows RFE, am i eligible to stay here without working?
    I am going to india in November for my marriage after that i will come as H4, I just want to know if i am eligible to stay in USA for one month or do i need to join any university ?

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