Overstayed OPT - Can I still apply for H1B?

B

BurnHard

Registered Users (C)
Graduated with Bachelors from US institute.

Had CPT job during program and was offered full time employment at graduation, got my paperwork done and received 12 month OPT approval.

Long story short, I forgot to pay attention and my employer's HR department forgot to put in my H1B paperwork (which was explicitly stated in my contract that they would do for me). When I realized I overstayed my OPT (my employer apparently didn't even notice and kept employing & paying me) I got scared and didn't really do anything about it until now.

So, I've overstayed by 5 months already. I was recently made aware that the H1B quote for B.S. (engineering) has not been filled yet and am wondering if my employer can still apply for me, and if they do if (a) the application would be even considered, given I've overstayed my OPT, (b) the INS even knows I overstayed my OPT, (c) what you guys think my best course of action should be right now (leave the country? then stay in contact with current employer, push the paperwork and hope it goes through?

I don't want to do anything illegal nor stay in my current illegal status, like I said it was partially my employer's and mostly MY fault for not keeping track of paperwork and then getting really scared of consequences and not doing anything for a while. I need to fix things.

Thanks for your input!
_B

PS: I can't apply for OPT Extension anymore since my "SEVIS record has been closed" according to the school I graduated from...
 
BurnHard said:
Graduated with Bachelors from US institute.

Had CPT job during program and was offered full time employment at graduation, got my paperwork done and received 12 month OPT approval.

Long story short, I forgot to pay attention and my employer's HR department forgot to put in my H1B paperwork (which was explicitly stated in my contract that they would do for me). When I realized I overstayed my OPT (my employer apparently didn't even notice and kept employing & paying me) I got scared and didn't really do anything about it until now.

So, I've overstayed by 5 months already. I was recently made aware that the H1B quote for B.S. (engineering) has not been filled yet and am wondering if my employer can still apply for me, and if they do if (a) the application would be even considered, given I've overstayed my OPT, (b) the INS even knows I overstayed my OPT, (c) what you guys think my best course of action should be right now (leave the country? then stay in contact with current employer, push the paperwork and hope it goes through?

I don't want to do anything illegal nor stay in my current illegal status, like I said it was partially my employer's and mostly MY fault for not keeping track of paperwork and then getting really scared of consequences and not doing anything for a while. I need to fix things.

Thanks for your input!
_B

PS: I can't apply for OPT Extension anymore since my "SEVIS record has been closed" according to the school I graduated from...
Click to expand...

You should go out of US immediately before you hit 180 days of your illegal stay. Let employer file H1 for you and once you get H1 approval notice get H1 visa stamp and then enter on H1 status. For more info talk to your company lawyer.
 
Thanks! This is very reassuring ... did some more research on my own and found those 180 days mentioned in other places as well.

Going to talk to my company lawyers right away, get them to put my paperwork in right away, and get tickets to leave the country well within those 180 days.

Remaining questions:
1) When do the 180 days start? Start at the immediate end of my OPT, or at the end of the extra 60 days you get to leave the US after OPT ends?
2) Is it enough to go to say, Canada, for a few months until I get the H1 approval notice, or do I have to go to my home country (Europe)?

Thanks!
 
Wow. Cool. Paperwork is being worked on by our legal counsel, excited!
Sounds like it'll all work out fine, very happy about it ... just one remaining question.

Assuming worst-case scenario my 180 days are over in a month, I'm about to book a flight out of the US. Would very much appreciate if someone knows this - do I have to go "home" or can I go to Canada, Mexico, etc...?

Thanks!
 
You will be unlikely toi get a visa in country other than your home country. You cannot enter to work on H1B anytime soon so you might as well go where you can live cheaply.
 
Concerned4us said:
You will be unlikely toi get a visa in country other than your home country. You cannot enter to work on H1B anytime soon so you might as well go where you can live cheaply.
Click to expand...

Huh? Latest I was told by company HR & immigration lawyer (and according to information on USCIS site) was that H1B cap had not been reached yet, meaning if they file now the Visa should get in for FY2010 which starts October 1st ...

Am I missing something? Or by "anytime soon" you simply mean within the next few months until October? Thanks!
 
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