F-1 OPT and H1B Cap Issues and Questions


Attorney_22

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This week, Murthy Law Firm attorneys will answer questions relating to F-1 OPT when an H1B cap petition has been filed.      

 

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 1. Attorney's postings contain general information only and are not a substitute for case-specific legal advice.

 

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Hi Team,

 

Any help would be appreciated in clarifying the following questions. I really got confused after discussing with the immigration team of my company:

 

Visa Status: Active, Currently on F1 (OPT)

My OPT expiry date: 03 Jan 2017,

Applying H1: Apr1st 2016

 

Following are the few questions I have.

 

 

1)Are we allowed to travel outside USA once H1 is filed on April 1st

 

a) Sill in processing

b) is approved

 

(leaving the country with F1 visa and re-entering with F1)

 

2) If I applied for H1 and Change of Status together under the premium processing, as per my research I found that if there is no RFE everything will be done by mid of May.

 

As Change of Status start date is Oct 1st 2016, am I allowed to travel outside of USA after Change of Status is approved in mid of May and re-enter before Oct 1st?

 

(i.e., leaving the country with F1 visa and re-entering with F1 visa but have the approved H1.)

 

3) what is the difference in the question2 answer if I applied under Consular processing category?

 

4)Which one is the better option? Change of Status(COS) or Consular Processing (CP). It seems in either of the two cases I have to attend the visa interview in the home country

 

 

Thanks in advance.

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If you travel out of the U.S. while a change of status is pending, the change of status portion of your H1B petition will be denied. Therefore, if planning to travel it is best to wait until after the H1B change of status petition is approved. If you are choosing to consular process, there are no travel restrictions. However, you will need to obtain an H1B visa and enter the U.S. pursuant to that visa within the validity (or no more than ten days prior to the start of the H1B petition) to be authorized to work pursuant to the H1B petition. If you still have questions feel free to call our office to speak to one of our experienced immigration attorneys.  

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Hi, 

 

I applied my OPT on DEC 1st 2015 (98 Days which is more than the 90 days waiting period) and its still in process, i have a job offer in hand, so my question is can my company run my pay roll with out my work authorization? does it affect my status now or in future?

OPT requires the EAD card for work authorization. 

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Hi,

     I saw the news that the new STEM OPT Rule is released, effective May 10th, 2016.

http://www.murthy.com/2016/03/09/newsflash-final-stem-opt-rule-released-effective-10-may-2016/

 

     I am planning to apply for my STEM OPT extension before end of March. I have my documents ready, and was just about to request the new I-20 from my school. Now, should I follow the new rules when I submit my application? Or will applications received before May 10th be evaluated based on the existing rule?

 

     I would really appreciate it if you folks can provide any guidance regarding this.

 

Thanks!

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Hi,

 

I graduated in may 2015 with OPT start date as June 22, 2015. I will apply for OPT extension soon in 2016. My F1 visa expires on June 12, 2018. If the new rule allows everyone to have OPT extension for 2 years (valid till 06/21/2018 in my case) , as my visa expires earlier will i be eligible for OPT extension till june 12, 2018?

If not do i need to do something. (When i applied for a US F1 visa the OPT extension was 17 months in year 2013)

 

Please advice.

Thanks,

Rosy

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If you travel out of the U.S. while a change of status is pending, the change of status portion of your H1B petition will be denied. Therefore, if planning to travel it is best to wait until after the H1B change of status petition is approved. If you are choosing to consular process, there are no travel restrictions. However, you will need to obtain an H1B visa and enter the U.S. pursuant to that visa within the validity (or no more than ten days prior to the start of the H1B petition) to be authorized to work pursuant to the H1B petition. If you still have questions feel free to call our office to speak to one of our experienced immigration attorneys.  

Hi Sir,

Thanks for reply.

If I travel after COS is approved (typically would be done by May 15th) then traveling between May 15th and Oct 1st is problematic? because once my H1B with COS is approved my SEVIS will be moved to COMPLETE. Then I may not enter into US with F1 Visa With COMPLETE status of SEVIS.

 

Is my understanding correct?

 

Thanks in advance.

Suresh

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Hi,

     I saw the news that the new STEM OPT Rule is released, effective May 10th, 2016.

http://www.murthy.com/2016/03/09/newsflash-final-stem-opt-rule-released-effective-10-may-2016/

 

     I am planning to apply for my STEM OPT extension before end of March. I have my documents ready, and was just about to request the new I-20 from my school. Now, should I follow the new rules when I submit my application? Or will applications received before May 10th be evaluated based on the existing rule?

 

     I would really appreciate it if you folks can provide any guidance regarding this.

 

Thanks!

Despite the change, you are required to apply for your STEM OPT extension before the expiration of the standard 12-month OPT. Then if your 17-month STEM OPT was approved prior to May 10, 2016, you have two choices: Option 1: Continue in the 17-month period until it ends, without applying for an extension. If the student chooses this option, the standards of the 17-month rule will govern that STEM OPT period throughout its term. Option 2: Request the balance of the modified extension (i.e., the extra 7 months). Not all students with approved 17-month STEM OPT will qualify. 

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Hello,

 

I have got admit from university in USA for Fall 2016 which starts in mid August. I plan to come there on F1 and then i intend to go back to India in November for a couple of days to get married. Will there be a problem going back to India and also coming back?

Provided you have a valid F1 visa and can document your continuing authorized studies at the university pursuant to the terms of F status, you are eligible to travel (assuming no other inadmissibility issues exist). 

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Thank you very much for your answer.

 

Since my initial OPT expires in July, I am already eligible to apply for extension. However, when is the earliest we are allowed to apply for the new 24-month extension? 

 - Should I wait till May 10th (when the rule takes effect) before I request a new I-20 and mail my application with the new supporting documents?

      OR

 - Can I send out my 24-month extension application in mid-April itself, with the new supporting documents? Realistically, the file will reach them for decision only after May 10th, correct?

 

Thanks!

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Hi,

 
I have critical situation. Currently I am on 17 month OPT Extension period, I got a full time opportunity but it starts after April 10th 2016. Here is the tricky part, The current employer where I am working as a contractor with him is going to apply H1B this April 1st 2016. If after applying my H1B i.e after April 1st 2016 I join as full time and I will update my employment to USICS that current employer is Full time Employer.
 
Now I don't want to loose the opportunity of filing H1B and loose the opportunity of Full Time. I am in a big confusion which one to chose.
 
Please kindly help me with this situation what would be best way to go.
 
please kindly help in giving best solutions.
 
Thank you
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