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Travel on OPT while H1-B application pending

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  • Travel on OPT while H1-B application pending

    I am currently working on OPT which will expire on 5/30/2013. My student visa is valid unitl 2017. My employer is going to apply for the H-1B visa in the first days of April. I have to travel abroad for personal reasons and will be returning to the US on April 6th, so the COS request would be pending at that point. I was advised to apply for the H-1B to be processed at a US Consulate aborad. USCIS has also announced that a lottery is likely this year so they may stop accepting applications on April 5th.

    If I decide to do consular processing:

    1. Will I be able to return to the US on April 6th on my OPT and continue working until I get the H-1B visa on October 1st?

    2. Is the application for consular processing to be filed by April 5th (given that a lottery is likely this year) and can my lawyer do it while I am abroad?

    3. If I understand correctly, I will have to go to a US consulate abroad on October 1st to get my H-1B visa? What are other implications of choosing consular processing?


    Many thanks in advance for any help.

  • #2
    Originally posted by nataliapel View Post
    I am currently working on OPT which will expire on 5/30/2013. My student visa is valid unitl 2017. My employer is going to apply for the H-1B visa in the first days of April. I have to travel abroad for personal reasons and will be returning to the US on April 6th, so the COS request would be pending at that point. I was advised to apply for the H-1B to be processed at a US Consulate aborad. USCIS has also announced that a lottery is likely this year so they may stop accepting applications on April 5th.

    If I decide to do consular processing:

    1. Will I be able to return to the US on April 6th on my OPT and continue working until I get the H-1B visa on October 1st?
    -- Since your OPT ends before Oct 1, normally you would have rely on cap-gap extension to work between May 30 and Oct 1. But since your H1 is being filed without change of status, cap-gap will not be available to you. Thus you will have to stop working on May 30 and leave the US within 60 days after that.

    2. Is the application for consular processing to be filed by April 5th (given that a lottery is likely this year) and can my lawyer do it while I am abroad?
    -- It has to be filed on Apr 1, and since this is consular processing it does not matter where you are located.

    3. If I understand correctly, I will have to go to a US consulate abroad on October 1st to get my H-1B visa? What are other implications of choosing consular processing?
    -- See reply to 1. You will need to leave the US within 60 days of OPT expiry, obtain H1 Visa and return on or after Oct 1.

    Many thanks in advance for any help.
    There is a problem with your plan. If OPT extension is not possible, I will advise you to change your travel plans. See above.

    If you change your travel plans and are present in the US on Apr 1, the petition can be filed with change of status. That will get you cap-gap extension to work before May 30 and Oct 1.
    This is my opinion and not legal advice.

    Comment


    • #3
      Reply

      Thanks for your response. In this case I will file in the US to get my OPT extended. I have two more questions then:

      1. If I understand correctly USCIS is likely to stop receiving applications on April 5th, so I must file by April 5th. In this case, can I return to the US say on April 3rd and file on the same day? Or should I make sure to be here by April 1st?

      2. If I file in the US and there is lottery and my application is not approved, can my employer file for a green card?

      Thank you.

      Comment


      • #4
        If you are eligible for OPT extension (17 month STEM extension), you don't need to worry about H1B. It can even be filed next year if you miss this year's cap. Just have them file in consular processing and that will mean your locations makes no difference.
        This is my opinion and not legal advice.

        Comment


        • #5
          Not eligible for STEM extension - my degree is in science of economics. But thanks a lot for your help, I really appreciate it.

          Comment

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