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.
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:
- 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.
- 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.
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.