Urgent questions...please clarify!!

[infoboy]

Sorry if this is the wrong thread....My wife and I are planning to get our H1B visas stamped in Mexico soon. Here is the case history….She was on an F1 visa, had an EAD as part of her OPT and the EAD was valid till August 1, 2004. However, she unintentionally continued her employment with the same company till September 30, 2004. Meanwhile, she applied for her H1B visa with another company, got it approved with a start date of October 1, 2004. So she started her employment with the new employer from Oct.1, 2004. After this, she has did an H1B transfer as well successfully. For both H1B approvals, she was issued I94s. Now my question is, is there any way the consulate in Mexico could know she worked those extra 2 months WITHOUT authorization? The company that she worked with earlier has given an experience letter that states that she worked till only July 31, 2004. So this works out in her favor. But will the amount shown on her W2 from this company indicate she worked those extra 2 months? Or is there any other way they can find out about her unauthorized work? If it is going to be too much of a problem, then I’d rather ask her not to go for her stamping. Please advise…

My case: I got an offer letter from a consulting company in July 2004 and joined the client sometime in the middle of July 2004. Unfortunately, my consulting company forgot to file my H1b transfer and ended up filing it in September 2004, 2 months after I joined the client. The left the client and my consulting company now. The client was willing to give me an experience letter stating my start date was September 2004. So is this going to be a problem? I mean the delay in filing my H1? Can I say that it was the company’s fault (it really was!!) or that they filed it at the wrong service center and it was returned after a month. Hence, the delay?
Sorry for the long note...

 

[TXasian]

My understanding is, a student is still in F1 status while working on OPT. But, as soon as OPT expires she/he is no longer in F1 status. My concern is, what was your wife's non-immigration status during Aug-Sep? Looks to me, not only she worked illegally, she stayed in the US illegally. Hope I am wrong. Please contact an immigration lawyer about this.
It will be quite easy for the consulate office to find that she was out of status for 2 months by checking the expiration date of OPT and starting date of H1B. I would not go for a VISA stamp without consulting a lawyer first.

Regarding your other question, it is not clear whether you are talking about H1B transfer or first time H1B filing.

 

[bjorn]

I agree. There is illegal employment here. She may get away with that when stamping, but it will catch up to her if you plan to apply for a green card, as at that point she will need to show legal status throughout her entire stay in the US, with no gaps.