Stay in US after H1B approved

S

saher

Registered Users (C)
Hi Guys,

MY OPT is expiring in March 2006 and I missed the Fiscal Year 2006 65K quota.The next thing for me is to apply for the Year 2007 quota.Bearing in mind that I have a two months grace period after my OPT and if I apply with a premium processing I should be able to get my H1 approved before the end of April 2006.

My question or rather say concern is my stay in US.Would I be able to stay in US till October 2006 which will be the start date of work.I dont want to go back to India and would rather stay here till October.

Please let me what are my chances ??Should I have to go back or should I have to get enrolled in school for the period between March to October inorder to stay.

Any suggestions are greatly appreciated

Thanks a lot in Advace
-Saher !
 
Once your H1 gets approved, you need some kind of visa status until Oct. to stay in the US. If you maintain F1 or other visa status and your COS gets approved, you can stay till and beyond Oct., but if your COS gets denied, you definitely need to go out of the US and reenter with new H1 stamp.
 
I just spoke to my lawyer today and he basically told me that I can stay in USA once I filed for H1B in April 2006 with a start date of Octiber 2006. He said there is no additional documentation needed for me to file inorder to stay in US once My OPT Expires in March.

JUst wanted to confim with your guys knowledge.Is this true or should I consult some other lawyer. I am in a big delimma ....Please Help
 
Please ask lawyer once again, specifically, if you could stay in the US even after H1 is approved but before Oct 1. Answer must be No.
If you have H1 petition pending, you are legally allowed to stay in the US as you are considered in "authorized stay" because of pending petition. However, if H1 is approved before Oct 1 and you do not have other status such as B or F etc, you are not allowed to stay til Oct 1(strictly, til 9/20).

If H1 pending somehow slipped into Oct 1, then you are fine to stay through H1 pending period and start working once H1 is approved.
 
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GotPR thanks for answers. I asked the same question on murthy.com and got this answers (See Below ).Please let me know... I am all confused

posted January 08, 2006 11:40 PM
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Answer from my research to "Stay in US after H1B gets approved"

I am not an attorney but did some research to file for my own H-1 and these are answers from my research.

I'll answer all the related Qs at the same time.

"I just spoke to my lawyer today and he basically told me that I can stay in USA once I filed for H1B in April 2006 with a start date of Octiber 2006. He said there is no additional documentation needed for me to file inorder to stay in US once My OPT Expires in March.
JUst wanted to confim with your guys knowledge.Is this true or should I consult some other lawyer. I am in a big delimma ....Please Help"
"I also will be facing similar prob as"
"I too will be facing similar prob as i have done my Bachelors my opt plus grace period expires on Aug 14,06 then from Aug 15-Sept 30,06 iam out of status. I was contemplating on going to some comunity college to cover that period. Any of you know if any school does that kind of FI."

A: Your lawyer is correct. Once you file for H-1, you can legally stay in the US, which means you are "in status." So, you do not need another
F-1.

If your H-1 is approved, you are allowed to stay in the US even after your OPT and grace period are over. As you all know, however, you are not allowed to work before October 1, 2006.

If your H-1 is denied, you have 60 days of grace period and at the end of the 60 days, you must leave the US.
 
It is true that DHS issued special treatment for F or J holder filing H1B in FY2004(and I believe FY2003 too). That allowed F or J holder to stay between F/J expiration and H1 start date even though H1 was approved before start date if certain condition was met. I think they are talking about this.
The following is Federal Register which dictates that temporary rule.
http://www.shusterman.com/pdf/fj-reg72304.pdf

However, as far as I know, that temporary rule was not issued for FY2005(so as not sure if that is issued for FY2006 too). Unless this rule still existed, you can not stay after H1 approvel before start date.
Please clarify.
 
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h1 - opt expiring

Hi all, I'm at the same position as Saher...
I get bachelor at june'02. My OPT is expiring on july 21'06

1. Assuming everthing work out, so if I start applying H1 this april (w/ premium), when will it be approved? month(s) after april or on October...? is it gonna be approved but pending?

2. I know this is still in debate, but let say I have to go back to school to cover (july 21+60days) sept'21 to october 1... what kind of school / I20 do I need to get? Can I go to any Community college or even language school that issue I20? 'cause I think I heard there is a law that saying that I have to go to at least same level of education or higher that I got (bachelor or master)?
I would prefer to go to community college because of financial issue, but want to make sure that I do the right thing...

3. When / what month do I need to apply for I20...? since I heard that once you apply for new I20, it will void my current OPT...

4. I can't work after my OPT expiration (7/21).. but actually I'll still be working on the company that will sponsor me H1. The company is willing to work with me though. So I won't be paying taxes within those time.. so legally I'm not working.. what you guys think?

Please guys.. help me out.. I'm so need in help...

Thanks for your time
 
For #4, you can not "work" even w/o pay. Any productive work is prohibitted no matter if you are paid or not, unless you have work authorization.
 
So if i get the I20 from Kaplan in April or May when I am in grace period, will that be OK and During that time I will also be applying for my H1B. I dont know how to go about it or when to apply to for new I20 . I would definetly want to work till March which is where my OPT expires.

And would be any problems during my H1b stamping since I have my Bachelors here and I am taking some dumb KAPLAn course.

Please Advice of how and when Should I react

Thanks for all the Answers PR.. You are truely a good adviser..


Thanks once again

_saher
 
that's what I'm wondering too.. I thought there is a law somewhere that's saying that we have to get same level of education or higher.. don't know if it's correct though... so has to be 2nd bachelor or master...

It would be nice if we can just go to junior college.. taking just "any" classses and get I20....
 
With my poor knowedge of F visa, having valid I20 can give you legal stay in the US as I94 is D/S(Please correct if i'm wrong). There may not be law(not sure) not allowing to downgrade school, but stance of visa authority is downgrading school may lead F visa denial. However in this case, only I20 is involved and thing does not even come to visa approval/denial level, so i'd say it's gray.
 
I agreed... there might not be law saying that... but it might arouse questions of INS officer if we decide to apply for green card later on maybe... will it effect H1 issuance though? anybody..
 
Unless obtaining I20 with lower level education is viewed as fraudulent(no intent to study), H1 is not affected.
 
ok guys... I just talked to lawyer yesterday, this is what he said:
as I said earlier My OPT will expire on July 21'06.. If I apply H1 on April... my H1 will be appoved, but my COS (from F1 to H1).. will not be stamped...since there is opt expiration-h1 gap. Therefore, I will need to get that stamped back in my home country consulate,
So he said, if I opt to go back to school, instead of getting stamp in my home country... I will have to get a new I-20 before I start applying for H1 (april). So, around april till october I will not be able to work (since getting new I20 will void my opt). And I will have to maintain I20 status by going to school from within april to october. That's about 6 months at least NOT working and paying for school

That's pretty bad news for me... First I thought... I won't be able to work between july 'till october and have to get new I20/go to school around that time period too... that's only 3 months...

Is this true guys... any idea.. please help me.. I really don't know what to do...

thx
 
I'm a little confused. If you apply for H1 in April (starting 10/1) BUT apply for an I20 in July, doesnt that invalidate the H1?
 
No,
What d1jey(and his lawyer) is saying is unless you have I20 applied before you file H1, your COS is not valid(does not mean H1 petition is invalid), thus you need to travel and come back with H1 stamp to start working.
 
so is my lawyer correct? If I want to apply H1 on april I do need to go back to school before applying (before april)... not before my OPT expired (July)...

If I apply new I20 before april, then at the same time my OPT will be voided. So on april when I apply.. INS will notice that don't have OPT anymore and I'm going to school to study... will that cause any problem? is valid OPT required for applying H1?

So if everything perfect: So before april I will get admitted to school, get new I20, don't have my OPT valid anymore. On April: I will get my H1 approved and COS stamped for October...

Can anyone give me feedback? if maybe I miss anything.... I just want to make sure I did everything right...

I will really appreciate any input

thanks
 
IS any chance CIS will come up with the rule again like the previous years and if they do when do they realease the infomation publicly...
 
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