H1B petition during grace period

[optimust]

Hi there,

I am on 17 month stem extension OPT and due to various reasons and also my mistake my H1 didn't get filed before. First time I wasnt sure I wanted to stay here and second time by the time my LCA got approved, the quota got exhausted. I finished my bachelors degree from one of the top colleges in the states. My current employer is willing to file my H1 this year. My current OPT ends on March, 15th 2013. Therefore, its needless to say that I will be in grace period while my H1 is being filed. I have a bunch of questions related to this situation:

1. Do I need to file it under premium processing or normal would do?

2. Usually how much time does it take to get acceptance notification from USCIS?

3. I know I will fall under cap-gap but not be employment authorized until October 1st so do I need to show anything for those 6 months?

4. I currently work under the EVC model and I have also worked FT for some other company as well in the past. Now, would my case have any implications due to the EVC model? I believe that shouldn't be a problem since this is not a stamping issue. My employer has a very good reputation and if I am right we never had any rejections so far. Also, my employer is just not a consultant but we get various state projects etc.

I am not sure if anyone on here have had similar circumstances but would really appreciate for a constructive feedback.

Thanks

[Attorney_25]

The EVC issue may actually cause an RFE to show that your assignment will continue for a significant period past October 1. Alternately, or even in addition to an RFE, you may receive a shortened validity period. It may be helpful to discuss all the details of your situation with a qualified immigration attorney.

[wiweq]

1. Do I need to file it under premium processing or normal would do?

=> PP makes process faster, takes 15 calendar days. Regular takes 3-6 months.

2. Usually how much time does it take to get acceptance notification from USCIS?

=> In PP, you get receipt notice in 3-days, in regular processing you get it in 1-2 months.

3. I know I will fall under cap-gap but not be employment authorized until October 1st so do I need to show anything for those 6 months?

=> To use cap-gap, your H1b should be approved when you are in OPT. This is not you case, you won't be able to use cap-gap. (Wait for others' comments.)

4. I currently work under the EVC model and I have also worked FT for some other company as well in the past. Now, would my case have any implications due to the EVC model? I believe that shouldn't be a problem since this is not a stamping issue. My employer has a very good reputation and if I am right we never had any rejections so far. Also, my employer is just not a consultant but we get various state projects etc.

=> Your employer needs to show a valid job after Oct 1st with proper documents. Your employer will do this, they own this H1b.

[optimust]

I confirmed it for Q3 that I will be using cap-gap. That's what the USCIS website says as well as my Advisor. Now your point about valid job after Oct 1st makes sense but what about these indian companies who apply H1 in bulk for people even there is no project available for them? Just curious to know.

But I am sure if that is a concern my employer will take care of that. If needed he will file an lca so that I am his straight employee and later amend it after Oct 1st.

[wiweq]

"I confirmed it for Q3 that I will be using cap-gap. That's what the USCIS website says as well as my Advisor."

=> Could you please share the link of your school's website or USCIS website confirming your statement.

"Now your point about valid job after Oct 1st makes sense but what about these Indian companies who apply H1 in bulk for people even there is no project available for them? Just curious to know."

=> Gone were the days when companies misused immigration system. Before 2006 USCIS were used to approve H1bs without job also, but now they require the proof of valid job.

"But I am sure if that is a concern my employer will take care of that. If needed he will file an lca so that I am his straight employee and later amend it after Oct 1st."

=> While filing H1b, companies have to classify their business. If they choose "consulting" they have to give the proof of work/ project. Even for In-house projects they have to provide the proof of job otherwise it’s equivalent to no job!

[optimust]

Here you go:

What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?

A7. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended). ( http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD)

=> Gone were the days when companies misused immigration system. Before 2006 USCIS were used to approve H1bs without job also, but now they require the proof of valid job.

I am not talking about 2006 but last year. I know ton of people who keeping coming here from off shore and then go back at least in my project. I am not sure how but it still happens. May be you might have a better explanation. We have filed lca for network engineer positions before so that should not be a problem. Also, I think I am going for PP.

Now when I think about your statement regarding "proof of work/project", it again kinda rings a bell. Think about companies like Accenture, Deloitte. They do the same thing as well just that they dont have a vendor in between. Even if there was no EC concept, still there is no proper way to prove that such and such guy/girl will be working on something after 6 months. I mean things change in days and this is about months. I have a feeling that one of the major point we are missing here is that "an employee needs to be employed and be paid according to H1 classification". By the way I am a proper employee of this company. I get health coverage, 401k etc from them.

I think now you have much better information to make an inference.

[Attorney_25]

3. I know I will fall under cap-gap but not be employment authorized until October 1st so do I need to show anything for those 6 months?

=> To use cap-gap, your H1b should be approved when you are in OPT. This is not you case, you won't be able to use cap-gap. (Wait for others' comments.)

If he files before the EAD expires, a person uses cap-gap to continue to work. If he files in the 60-day grace period after EAD expires, he uses cap-gap to remain in the US but cannot work.

I confirmed it for Q3 that I will be using cap-gap. That's what the USCIS website says as well as my Advisor. Now your point about valid job after Oct 1st makes sense but what about these indian companies who apply H1 in bulk for people even there is no project available for them? Just curious to know.

But I am sure if that is a concern my employer will take care of that. If needed he will file an lca so that I am his straight employee and later amend it after Oct 1st.

It would be difficult to get a consulting position approved with no project assignment without fraud. Fraud by an employer can sometimes be imputed (maybe properly, maybe improperly) to the H-1B employee, and fraud by the H-1B employee can cause him to be permanently barred from the US, so it's important to be aware if this might be happening.

[optimust]

3. I know I will fall under cap-gap but not be employment authorized until October 1st so do I need to show anything for those 6 months

I asked them about the petition again and they said they will file it the way it is. They told me that their attorney has done this before once without any issues. But again every case is different. I am surprised that no one in this forum has been in such a situation before?