F1-OPT-H1B-F1-OPT-H1B-FRE

[sparclu]

I have worked on H1b from Oct '08 to May '09. Then in July '09 I changed my status to F1. I finished my masters degree on Dec '2010 and my OPT started from Jan 14 '11 to Jan 13 '12. In Dec '11 I have applied for H1B premium process but got a RFE on Jan 3rd. I inquire about "Cap Gap" but came to know that I do not qualify for it because I applied H1B after October (Since I had prior H1B I don't fall under quota).The problem is my OPT is expiring on Jan 13 but my project is still going on. Even though I do not qualify for "Cap Gap" can I still work after Jan 13 while responding to that RFE and waiting for the decision?

[Attorney_10]

Generally, when applying for a change of status from F-1 to H1B status the beneficiary may not work with the employer until the H1B petition and change of status is approved and the start date takes effect. In limited circumstances the beneficiary may work while the H1B petition is pending if s/he has valid work authorization (i.e. OPT) or the case is filed as a cap case and the individual falls under the "cap gap" exception. Please schedule a consultation with a qualified immigration attorney to discuss the specific facts relating to your case and to determine whether you must stop working upon the expiration of your OPT.