OPT expired H1B 2014 approved - CAP GAP


kriish99

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Hello,

My OPT expiration date was Jan 10th 2014, I have applied for STEM OPT but denied due to late submission(April 27th - Denial of STEM OPT). I didn't sign I765 form so USCIS returned the package back to me. Once I signed and sent the package back, it already passed OPT expiry date. I have contacted my school at that time and they said I can legally work till Sep 30th 2014 under CAP-GAP as my employer files H1B. My H1B petition got picked and few days later my STEM OPT application was denied due to late submission. Now i have received the approval for H1B but with "Consular processing". I have contacted my school and they said I can work till SEP 30th 2014 under CAP-GAP. I have few question regarding my status now,

-> As my H1B is approved without I94, can I legally stay here until I get my H1B stamped and come back into the country with new I94.

-> Does the consulate raise any questions regarding my CAP-GAP or OPT

 

Please advice or suggest. Any help is appreciated. 

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I believe what your school said was wrong. Since your OPT extension was denied you actually had 60 days of grace period from Jan 10th (OPT end date) to exit US. You will be considered under CAP-GAP only if your H1B petition was filed within this 60 days grace period. It wasn't in your case. You should have exited US once you got OPT extension denial notice. Therefore your work for employer till now might be unauthorized employment. I might be wrong. Talk to a good attorney rather than just relying on your school.

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Thanks Jairichi for your response. 

 

Just a note, I received my OPT STEM denial after applying for H1B. I even received an EAC receipt before my OPT denial. Does this change anything..

 

No, it doesn't change anything.

Your OPT was over by April 1, so even if cap-gap would apply, you for sure can't continue working.

You have to stop working immediately.

You may or may not be able to stay in the US until Oct. 1, but I doubt that, given that the H1 was not approved as COS. That means that USCIS considers you being out of status.

So, from my understanding of the laws, you will have to leave the country.

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I haven't been working since my OPT STEM denial and I'm planning to leave US asap. My employer is not helpful in this matter. Please suggest what kind of documents would help in stamping and kind of questions expected from VO and I will be applying for Visa interview in Hyderabad. Anyone who have experienced this kind of situation please share..    

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