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F1 to H1 help

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  • F1 to H1 help

    I am on F1 currently and my OPT expired last week. My prospective employer is willing to file H1 application in April so that I can start working from october. My question is: can I legally stay in US from May to october even though I am not authorized to work till then?

  • #2

    nope..u can't..once ur opt expires..u have 2 months to pack ur bags..(assuming u don't to school again)


    • #3
      It's actually a gray area

      Just wanted to let you know that it's not exactly that you have to leave the country.

      note that after the H1B has been filed for, and the
      approved application received (though with date beyond October), a person
      can move to the B1-B2 visa as described below:

      (Relevant information)
      Options for Maintaining Status – B-1/B-2 Status
      In most cases where interim status is needed (Some exceptions, e.g., J-1
      with HRR) a “B-1/B-2” application could be an option. The general
      instructions below are applicable to all applicants :

      - Get Form I-539 from USCIS (NOTE: CONFIRM THE FILING FEES)
      - Apply for a 6 months change of status to B-1/B-2 , which can be used as
      a catch-all status for all stay in the U.S.
      - Attach to the I-539 a letter explaining to the USCIS that :

      1. You need temporary stay in USA, and why (the H-1 quota expired and you
      could not apply in a timely manner – give detailed reasons);
      2. You have means to support yourself; and
      3. You know you are not allowed to work on a B status.

      This should usually get you 6 months stay without falling out of status.

      ===========ONE QUICK NOTE==============
      In a case in June 1999, USCIS seems to say that they may NOT issue B
      status to everyone. Note the following letter from USCIS:
      "The B-1/B-2 classification is not a "catch all" classification available
      to all who wish to come to the United States temporarily for whatever
      purpose. Instead it encompasses a specific, defined class of alien.
      You must establish the following to be eligible for a B-1 nonimmigrant
      As you are in the United States conducting business on behalf of a
      entity, it is reasonable to expect that you are making frequent contact
      with this entity. Submit evidence of your contact with the foreign
      by submitting your phone statements.......
      Submit a letter from your employer that describe the nature of your
      employment with them...."

      I think USCIS is wrong. In any case, this may be your best shot.

      Note that, in the past, INS had allowed F/J students to stay in status
      when they got stuck in the gap (not allowed to work, though). We do not
      know how it will be handled now.

      Good Luck


      • #4
        F1 to H1 help

        Thanks for the information. Here is a brief summary of my situation:

        My OPT expired on March 12. I have 60 days grace period to get back in status. I have applied for H1 last week. I haven't done anything yet to be in status like applying to another school or B1/B2. Under these circumstances:

        1. Will my H1 application be returned (before I even get a receipt) because I haven't given CIS information on how I will be in status till Oct 1?

        2. If the application is returned, do I have to apply for H1 only after I get proof of the status (new F1 or B1/B2) and is it subject to the availability at that point of time or will it be accepted irrespective of cap issues (because it is a returned application)? I am worried as B1 or B2 approval takes lot of time and F1 doesn't take less either.

        I appreciate your time and attention.