H1 filing during Grace Period. F1 to H1

[rmymhn]

Hello,

I graduated with an MBA in Dec 2010. My OPT started on 28th Feb 2011 and it expires on the 28th Feb 2012. I am not eligible for an OPT extension since I do not fall in the STEM category.

My employer agreed to file my H1 but the quota for 2011 got filled before we could file for H1. So my employer wants to file for my H1 in 2012. I have grace period of 60 days from 29th Feb 2012 to 28th April 2012. Here are my questions,

1)    Can I file for a H1 during my grace period?

2)    What are the issues I might face if I file for H1 during my grace period?

3)    Say I file for H1 during the 1st week of April, am I eligible for a Cap Gap?

4)    Will I have to go back to India and enter the US only in October, if my Visa is approved?

5)    Until my Visa is approved, can I volunteer and work?

Kindly advice. I am in a big dilemma.

TY

[livliv]

H1 petition can certainly be filed during the grace period, but that does not give you any right to work after OPT ends. Since your current status (OPT end + 60 days) does not extend up to Oct 1, the H1 petition will not be approved with change of status. So effectively, that also means that you cannot stay in the US beyond the grace period. Consult an experienced attorney if possible.

[JoeF]

The employer can file an H1 while you are in the F1 grace period.

You can not work until the H1 start date, though, not even volunteering for the company.

[pontevecchio]

"Since your current status (OPT end + 60 days) does not extend up to Oct 1, the H1 petition will not be approved with change of status"

That is not true at all. The OP will get cap gap without being able to work.

1. YES

2. The same issues as anyone...credibility?

3. YES

4. Visa and Petition are different. If your sponsor files your H1 petition with COS you can stay till decision. Visa is a physical stamp you get in another country..

5. You cannot do anything construed as work if you are in cap gap in your situation. So the best way is to have them file and then come back at the appropriate time with the H1 visa unless you are independently wealthy.

[livliv]

"Since your current status (OPT end + 60 days) does not extend up to Oct 1, the H1 petition will not be approved with change of status"

That is not true at all. The OP will get cap gap without being able to work.

Are you sure? Any references?

[pontevecchio]

The cap-gap extension is now available to students who, as of April 1st, 2011, were either on approved OPT or in their 60-day grace period and have a pending or approved change-of-status October 1, 2011 H-1B petition with the USCIS that was filed prior to the expiration of their OPT or 60-day grace period.

This cap-gap extension will produce one of two outcomes, depending on your individual situation:

1. Extension of your OPT work authorization to September 30th, 2011. This happens if your original OPT end date (on your EAD card) is on or after the day that your employer filed an approved H-1B petition. For example: if your OPT end date is April 15, 2011 and your employer files an approved H-1B petition on April 5, your OPT is automatically extended.
   
2. Extension of your F-1 “duration of status.” This happens if you are in your 60-day grace period on the day your approved H-1B petition is filed. Again, you would be allowed to stay in the US if you otherwise maintain your F-1 status, but you are not authorized to work until the H-1b petition is approved and goes into effect October 1st, 2011.
   

http://internationaloffice.berkeley.edu/students/training/f-1/cap-gap

[JoeF]

I would still like to see the actual law text.

[livliv]

Actually I found something on ICE website. Not the law text, they do refer to the corresponding CFR. The conclusion is that if H1 petition is filed during the grace period, stay is extended but not the work authorization up to Oct 1.

Also, there is no extension of work authorization beyond Oct 1 in any case. If petition remains pending after Oct 1 and OPT has expired the beneficiary must stop working until petition gets approved.

http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_042010.pdf

Relevant points are under 9 in this document.

[rmymhn]

Thank you very much for your responses. I just have one more question, during my grace period and my cap gap, can I volunteer and work with out any pay?

[rmymhn]

Thank you very much for your responses. I just have one more question, during my grace period and my cap gap, can I volunteer and work with out any pay?

[rmymhn]

Thank you very much for your responses. I just have one more question, during my grace period and my cap gap, can I volunteer and work with out any pay?

[JoeF]

Thank you very much for your responses. I just have one more question, during my grace period and my cap gap, can I volunteer and work with out any pay?

No, you can not!

That would also be work, and is not allowed.