critical situation - F1 OPT EAD expired before applying H1B, but I20 date is valid

[richiescb]

My wife recently found an isue with her EAD card. She had applied for STEM extension in early 2012. Her OPT I20 has a valid date that was requested ie from Jun 2012 to Nov 2013 (17 month extension). Unfortunately USCIS made a human error while issuing the i797 approval notice and EAD. Both of them has dates between Jun 2012 to Nov 2012. Instead of giving EAD approval for 17 mo she received only 5 months. Unfortunately we never realized that expiry date is only till Nov'2012 and not till Nov'2013.

We called USCIS, and they told that since your EAD is already expired they will have to get confirmation by california state. and they will get back by Mar 21, 2013. They didnt told whats next after getting this confirmation.

Her company is preparing for H1B to be filed this April 2013 when she found this error.

Can her company/lawyer still continue to file H1B based on the valid date present in the I20?

Does she need to go back to India to file H1B peition?

Can she continue to work with her current employer?

Will there be any problem in maintaining a valid visa status?

Any suggestions what would be the best route to take?

Since she is on STEM extension this would be her last chance to file for H1B this year.

Is thery any way USCIS can expedite this process?

[wiweq]

Her work authorization was expired in Nov, 12. She should stop working and wait till the problem is solved. Because I20 is not expired, she can stay in USA (for total 90 days unemployed).

Employer should have no problem in filing H1b. Contact her DSO.

[Attorney_25]

Unless she can get the EAD error fixed, she will not be able to have her status changed to H-1B in the US. You may want to hire a qualified immigration attorney to attempt to correct the EAD. It may be too late at this point, but that's not certain.

[richiescb]

Thank you for your response. Her company lawyer who is preparing the H1 paperwork mentioned that they can file a regular H1B petition. The laywer told her that unless the EAD card is correct before April 1st they can file a regular H1 and she wont be able to change the status in US. The lawyer also told that she will have to immediately go back to home country once the petition is approved and then go to the US consulate in home country to get a H1B visa. This is just like a person in abroad applying for H1B.

Can she apply for H1B and before it is aproved if she get the EAD card corrected would she be able to change the status to H1B in US without leaving the country?

Can she still continue to work for her current employer as there is a human error in the EAD card but not on I20? We are anyways working with USCIS to have it corrected.

[wiweq]

Thank you for your response. Her company lawyer who is preparing the H1 paperwork mentioned that they can file a regular H1B petition. The laywer told her that unless the EAD card is correct before April 1st they can file a regular H1 and she wont be able to change the status in US. The lawyer also told that she will have to immediately go back to home country once the petition is approved and then go to the US consulate in home country to get a H1B visa. This is just like a person in abroad applying for H1B.

Can she apply for H1B and before it is aproved if she get the EAD card corrected would she be able to change the status to H1B in US without leaving the country?

Can she still continue to work for her current employer as there is a human error in the EAD card but not on I20? We are anyways working with USCIS to have it corrected.

=> Wait till mid of March, if the EAD problem is fixed go with the COS. If it's still not fixed, consular processing will be the only option. They means she would need to leave USA, get the H1b stamping to enter in USA on H1b status.

As attorney_25 suggested, H1b with COS cannot be filed until the EAD problem is not fixed.