Legally stay in US after applying for H1B

[kchugh]

Hello Everyone,

I need some clarification about the the date October 1 i.e. is today. My case is: I applied for H1B visa on April 19, 2012. OPT expired on July 19, 2012. I got a request for evidence and I submitted that in a timely fashion. The USCIS people got the documents they requested for on September 17, 2012. My question to all you people is: Can I legally stay in the US till USCIS has my H1B application and till they make a decision? I know this is kind of late but I tried to call and talk to my lawyer but I have not been able to get in touch with her. So please if anybody could give me a little insight on my situation that would be great.

[stanos86]

yup you can...but I am not sure if you can work now till the decision is made...all the best buddy

[kiran234]

Your work authorization ended on SEP 30 th.

From OCt 1st, legally your are on 60 day F1 Grace period. So your can stay legally for 60 days from Oct 1st.

Hopefully your H1B will be approved with in this period.

Pending H1B application will not authorize any legal stay.

Please check with a qualified attorney about your case specifics.

[JoeF]

Pending H1B application will not authorize any legal stay.

Actually, it does. A person is legal while a COS is pending.

Of course, the pending COS doesn't provide authorization to work.

[kchugh]

Your work authorization ended on SEP 30 th.

From OCt 1st, legally your are on 60 day F1 Grace period. So your can stay legally for 60 days from Oct 1st.

Hopefully your H1B will be approved with in this period.

Pending H1B application will not authorize any legal stay.

Please check with a qualified attorney about your case specifics.

Thanks Kiran for replying back. I did get to talk to my lawyer yesterday and she was saying that I can work and stay legally in the US since my application is pending with the USCIS. I am really confused now. Could you please let me know where you got this information from. Is this mentioned on the USCIS site anywhere? Not questioning your knowledge but I need some proof so that I can talk to my lawyer again. Thanks a lot.

[kchugh]

yup you can...but I am not sure if you can work now till the decision is made...all the best buddy

Thanks for replying statnos. Kiran here is saying that I do have to leave after 60 days. Do you know if this is mentioned somewhere on the USCIS website???

[JoeF]

Thanks Kiran for replying back. I did get to talk to my lawyer yesterday and she was saying that I can work and stay legally in the US since my application is pending with the USCIS.

You can not work past the OPT expiration.

You can stay while the H1 COS is pending, but you can not work once your OPT is expired.

Cap-gap only allows you to work until Sept. 30.

[kiran234]

Sorry for the confusion...

You can stay while your H1B COS application is pending. but you cant work past SEP 30 th.

Not sure if there were any changes to work autorization, so Please check with your lawyer and find out what documents are necessary when completing the Form I-9?

I know that employers can use 240 day rule for EOS, but not for COS.

So if your employer and the legal team thinks that your I-9 is still valid to continue work while COS is pending, Please let me know how it is possible.

[kiran234]

Actually, it does. A person is legal while a COS is pending.

Of course, the pending COS doesn't provide authorization to work.

From my understanding about tolling(below) from USCIS AFM , it will depends on the case(COS) outcome. I am not an expert, so case specifics should always be discussed with qualified immigration attorney.

Requirements for Authorized Period of Stay with Respect to Pending Change of Status and Extension Applications.

(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1©(4) and 8 CFR 248.1(b).

(B) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and

© The change of status or extension application has been pending with INS or USCIS for more than 120 days after the date the I-94 expired.

Effect of Decision on Unlawful Presence and Tolling.

(A) Approved Applications. If USCIS approves an E/S or C/S application, the alien will be granted a new authorized period of stay, retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the alien was admitted (or to which the alien had previously be changed) pursuant to 8 CFR 214.2. No unlawful presence accrues. This applies to aliens admitted until a specific date and aliens admitted D/S.

(B) Denied applications.

(i) Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment. If the C/S or E/S application is denied because it was untimely or frivolous, or because the alien engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, provided the alien was admitted until a specific date. If, however, the alien was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision.

(ii) Denial of Late Applications. If the application was filed late and was denied, unlawful presence begins accruing on the date the I-94 expired, regardless of the reason for denial. For aliens admitted D/S, unlawful presence begins accruing on the date of denial.

[kiran234]

Thanks for replying statnos. Kiran here is saying that I do have to leave after 60 days. Do you know if this is mentioned somewhere on the USCIS website???

Let me make it clear about 60 day Grace Preiod.

F-1 students have a 60-day grace period in which they are permitted to do one of the following:

1. Begin a new program of study: Students must apply to the new program, be admitted and be issued a new I-20 before the end of the grace period. Proof of funding is required to issue the new I-20.
   
2. Transfer to another institution: Student must apply to another institution, be admitted, have the I-20 records transferred out to that institution before the end of the 60 days. The start date at the transfer-in school must be within 5 months following the date on which I-20 is transferred out or within 5 months of the 60th day of grace period.
   
3. Apply for a change of status: U.S. Citizenship and Immigration Services (USCIS) must receive the application to change the immigration status before the end of the grace period.
   
4. Depart the U.S. before the end of the grace period
   

Lets say if your H1b is still pending after 60 day grace periods. and you did not use any of the above options.

What hapens to your F1 status after 60 day GRACE Period?

If by any chance if your H1B is denied. What will be your status? and what are the options available to continue your stay in US?

So Please check with a qualified iimmigration attorney about your case specifics. and get your concerns addressed.

[JoeF]

I know that employers can use 240 day rule for EOS, but not for COS.

The "240 day rule" just means that for an extension, the person is legal while the extension is pending, for up to 240 days after expiration of the current status.

For COS, there is no such limit. The person is legal while the COS is pending.

For an H1 EOS, the person can work while the extension is pending, for COS to H1 the person can only work once the COS is approved.

And cap-gap provides work authorization only until Sept. 30.

[kchugh]

Sorry for the confusion...

You can stay while your H1B COS application is pending. but you cant work past SEP 30 th.

Not sure if there were any changes to work autorization, so Please check with your lawyer and find out what documents are necessary when completing the Form I-9?

I know that employers can use 240 day rule for EOS, but not for COS.

So if your employer and the legal team thinks that your I-9 is still valid to continue work while COS is pending, Please let me know how it is possible.

You can not work past the OPT expiration.

You can stay while the H1 COS is pending, but you can not work once your OPT is expired.

Cap-gap only allows you to work until Sept. 30.

Guys I am came across the University of California, Berkeley website: http://internationaloffice.berkeley.edu/students/training/f-1/cap-gap#how-long-extension-request?

There under the question - "What is a Cap-Gap Extension & who is eligible?" the first bullet point mentions that if the H1B is filed before OPT extension then I qualify for an extension of OPT employment authorization.

[kiran234]

kiran234, on 02 October 2012 - 10:01 PM, said:

I know that employers can use 240 day rule for EOS, but not for COS.

The "240 day rule" just means that for an extension, the person is legal while the extension is pending, for up to 240 days after expiration of the current status.

For COS, there is no such limit. The person is legal while the COS is pending.

For an H1 EOS, the person can work while the extension is pending, for COS to H1 the person can only work once the COS is approved.

And cap-gap provides work authorization only until Sept. 30.

Completely agree with JoeF . I clearly mentioned that 240 day rule is not for COS. Thanks JoeF for explaining it clearly.

[stanos86]

I have you agree with joeF

@kchugh

I hope the link below will answer all your question.

http://www.uscis.gov/files/article/OPT_4Apr08.pdf

Also if possible can you ask your employer to change your case to premium processing to reduce the turn around time instead of keeping you in this sort of tense times.

[Visaurgent]

Hi

I applied for cos from l2 to h1 on may 4,2012 and its still under initial review. My spouse is in h1 from oct 1,2012 so i also applied for h4 through his employer in the last of week of sep 2012. Now, i want to upgrade my case to premium for h1 so that i can a faster decision. Can you please help on the following?

1. If my h1 is approved and h4 is still pending, how do i cancel or request uscis to stop processing my h4?

2. If h1 is denied, and h4 is still pending...my I94 is valid till dec 17, 2012...should i be able to continue my stay in US legally?

3. Sould i go to India in nov and try to get h4 stamped along with my spouse's approved h1 petition? He would also be there with me.

Any suggestions/advise would be very helpful. Thanks a lot.

[jaswanthkumart]

HI,

 

I am having a similar scenario .

 

I have applied for H1B in April 2015 and got an RFE on Sep 9th which has a due date on Nov 29th, 

 

My opt is valid till NOV 2nd 2015 and now I don't have any work authorization document to show my legal status.

 

My Attorney haven't replied to my RFE yet.

 

 

Am I legal to stay in the USA?

AM I legal to work for my company till I get my decision for H1B?

 

Please help me

 

Thanks