OPT to H1B : OPT Expiring before H1B start date (2008)

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

Many students are trying to find answers to the above question. I’m not attorney or authorized person to answer the question, but I browsed around to find the answer and I came across few Immigration Attorneys web site that explained the answer to the above question.

According to USAVisaNow.com

Image Credit : Solar Ikon

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 US for Consular Processing. This is because you are allowed 60 days after your OPT expires to remain in status in the US.

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 US and attend an American Consulate for H-1B Stamping before returning to the US to start work on 10/1/08.

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

According to Zhang & Associates, P.C.

Students whose OPT will expire between April 1, 2008 and July 30, 2008 are perhaps the most common type of applicant to face the timing problem outlined in the paragraph above. In fact, most student’s OPT will expire between April and July because that time period coincides with the graduation dates of most universities, and subsequently, the beginning of 1-year OPT status.

Holders are allowed 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 on September 30. Therefore, a request for change of status to 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 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 status on September 30. Sally has two options:

1. She can stay in the US until September 15 and then travel to her home country where she will 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 legal status by enrolling in another F-1 program or change to another status, such as to B-2, in order to keep her in legal status until October 1. Enrolling in another F-1 program is a process that can be handled by the school, 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 on her H-1B application. According to USCIS regulations, once Sally obtains 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 fiscal year 2008-2009 is problematic. Demand for H-1B visas will exceed 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 for obtaining this sought-after visa at a minimum cost.

And again, I have listed the reference of the source for above two examples, if you are still in doubt, consult a Immigration Attorney.

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

What Next : You should now have clear understanding about OPT Gap period, but ultimately it all comes down to find a job. I have written a detailed guide for students to use networking to search for jobs. It’s the most effective way to look for job.

Related posts:

1. H1B Visa and OPT Gap Issues: May 2008 Graduation
2. H1 Visa Approved, OPT Expiring & Out of Status 5+ Months
3. Travel outside U.S. after H1B Visa Approval, before Oct 1 2008
4. I’m applying on April 2009, When Does H1B Visa Start?
5. OPT/H1B Visa : When to Graduate and Apply for OPT