OPT/H1-B CoS issue (txh1b, DMX and others..)

[vkautilya]

Hello All,

Suppose my H1-B application is already approved with a change of status from Oct 1. Now, if I request OPT from Sep 1 2008 to Sep 1 2009 what will happen?

Suppose I get OPT approved in three months from now, i.e. Aug 25. Will my OPT end on OCT 1 and I am on H1-B status automatically? or since my OPT is approved after my H1-B, my change of status request would be deemed as abanonded/nullified?

Would really appreciate insights and scenarios that are applicable in this case. Thanks so much!

[txh1b]

Once your status changes to H1b, your OPT even if it has a valid date is invalid. You are no longer on F1 status and you cannot get back on F1 status again or request OPT after a H1b COS is approved. Until Oct 1st, you can avail the F1 benefits.

Check with the ISO if things have changed after the 29 month OPT got introduced. I doubt it this changes anything.

[vkautilya]

thanks for the reply

My scenario is little different here. I am applying to OPT and H1-B CoS around the same time. Now, supposed my H1-B CoS is approved (if I go through premium processing, this is very likely to happen) and then OPT gets approved. How does that affect H1-B CoS that was granted previsously?

To be specific:

I apply for OPT May 25 requesting the start date from Aug 30
I apply for H1-B CoS (assume quote does not apply) July 1 (premimum processing)
My H1-B gets approved July 15.
OPT is still under processing
They finally look my OPT and approve it Aug 15.

Now, what will be status of my H1-B CoS and OPT ?? I understand that if you already have OPT, you will lose it after H1-B CoS. But the question here is what will happen to H1-B CoS after OPT approval.

Thanks!

[txh1b]

OPT will only be valid until H1b gets approved. If H1b was approved earlier, OPT will be approved only until Oct 1st and even if approved for longer is invalid.

Last action rule applies and H1b is last action (Read it as effective date of last action). If OPT application was looked at after Oct 1st, it will be rejected/denied.

The action that is effective last i.e H1b takes precedence. The F1/OPT has no value after a H1b COS approval effective date and cannot be reclaimed under any circumstances.

[vkautilya]

So, even if H1-b is approved earlier than my OPT it is deemed as the last action?

I will check this with the lawyer of course, but are you pretty sure that approval of OPT AFTER H1-B approval does not my H1-B CoS in jeopardy?

Also, applying for OPT is not technically a CoS right? I believe it is just extension of existing status and hence last action rule is still H1-B CoS even though it is approved BEFORE OPT?

Just trying to wrap my mind around this.

[txh1b]

I think I was clear on my previous posts and answered your questions. You are repeating the same thing again. I have nothing more to add.

[vkautilya]

Sorry if I am sounding repetitive here. I am confused with the 'last' action rule and want to confirm how it is applied here. If my OPT is approved after H1-B CoS doesn't that become 'last action' and cancel my CoS?

Anyone?

[txh1b]

Last effective date of action is considered.

If H1b was approved on 1st June, it is effective from a future date of Oct 1st. Hence the last action remains H1b until Oct 1st. What happens until Oct 1st does not impact H1b unless one travels outside US.

[txh1b]

If H1b is approved with COS, OPT cannot go past OCTOBER 1st.

what's the confusion?

[vkautilya]

Confusion..

Hmm..okay.

Consider this scenario:

1) Suppose I apply for OPT today, May 29, requesting the start date from Aug 30 2008 and until Aug 30 2009 (i.e. one year)

2) It will take them about 3 months to look at my OPT application. So they may pull out my file on Aug 29.

3) Now, in the meantime, Steve Jobs creates a nice job for me in in Apple and applies for H1-B, with CoS, using premium processing around a month from now. i.e. June 29. This petition may get approved by July 15 with effective date from OCT 1 2008

Now, when my OPT application is looked at in Aug, what will happen?

I am thinking of three scenarios:

1) Approve OPT for one year. Since this technically extends student status, my H1-B CoS and approved petition are not valid anymore. (i.e. approval of OPT becomes last action)

2) Approve OPT for one year. However, it is invalid from OCT 1 because I am no longer in student status (i.e. H1-B becomes last action). And how would I formally know if this is indeed the case?

3) Approve OPT only until Sep 30. (i.e. they take cognizance of my H1-B approval and treat my H1-B CoS, which indeed will have a later receipt date, takes precedence over my OPT request that is past beyond OCT 1)

4) Something else will happen

txh1b, in your previous post you told me that 2 or 3 will happen depending on if H1-B or OPT gets approved first. However, I have read that scenario 1 is also possible. In fact, some are recommending that if I am anticipating a H1-B petition with CoS then I should ask OPT only until Sep 30 to be safe.

I appreciate your replies and also along with your reply, do indicate your confidence level in your replies (i.e. if you have come across a case like this before and know the outcome, or heard from a lawyer about a similar scenario, or just on the knowledge of USCIS adjudication process works)

Sorry for the long post.

[vkautilya]

If H1b is approved with COS, OPT cannot go past OCTOBER 1st.

what's the confusion?

I agree that this is the case if OPT is approved first and H1-B follows.

[txh1b]

I agree that this is the case if OPT is approved first and H1-B follows.

Dude, you are not getting the point. I have been repeatedly trying to tell you what gets approved first DOES NOT matter. The effective date of COS is what matters. Read through all the posts carefully rather than just skim through it.

I will make my attempt in trying to help you along with dates.

Case Example: F1 student, Graduates March 20, 2008. Applies for H1b April 1st, H1b approved May 1st, with COS effective Oct 1st. OPT gets Approved June 1st, 2008. OPT validity is for 1 year say May 31st, 2009.

In the above scenario, as H1b COS was approved effective Oct 1st, 2008. The person is NO LONGER on OPT after October 1st as the F1 status is long gone. Even if the OPT card has the validity, the card cannot be used for work.

In the above scenario, even if OPT was applied after May 1st (if possible,, don't come back and say OPT has to be applied before graduation), or if the person applied for H1b before graduation and later applied for OPT, the last action is the H1b approval as Oct 1st is effective date when this action takes place. Got it??

[vkautilya]

Dude, you are not getting the point. I have been repeatedly trying to tell you what gets approved first DOES NOT matter. The effective date of COS is what matters. Read through all the posts carefully rather than just skim through it.

I will make my attempt in trying to help you along with dates.

Case Example: F1 student, Graduates March 20, 2008. Applies for H1b April 1st, H1b approved May 1st, with COS effective Oct 1st. OPT gets Approved June 1st, 2008. OPT validity is for 1 year say May 31st, 2009.

In the above scenario, as H1b COS was approved effective Oct 1st, 2008. The person is NO LONGER on OPT after October 1st as the F1 status is long gone. Even if the OPT card has the validity, the card cannot be used for work.

In the above scenario, even if OPT was applied after May 1st (if possible,, don't come back and say OPT has to be applied before graduation), or if the person applied for H1b before graduation and later applied for OPT, the last action is the H1b approval as Oct 1st is effective date when this action takes place. Got it??

txh1b, thanks for your responses. I have clearly read through all posts here and similar threads elsewhere.

This is my point: If OPT is approved after H1-B, then why OPT is not construed as last action? This action of extending student status is taken after H1-B, approval date later than CoS approval and status extension valid until after OCT 1. Doesn't that cancel the CoS since through OPT I am requesting extension of student status?

[enigmatic10me]

It looks like you want to hear what you think is right. Txh1b is 100% correct. If you still don’t believe this thing, you can do what I did when I was in the similar situation and wanted to travel aborad. Go to nearest international airport and contact home land and security department about your case. They clearly told me that once H-1b approved (regardless before or after your OPT is approved) you will be on H-1b status from Oct 1st. Also keep in mind that It is not at all advisable to travel when your are on OPT and H-1B approved as you might not be able to re-enter in the USA before sept 20th.

[txh1b]

If OPT is approved after H1-B, then why OPT is not construed as last action?

Why? Because that is not how the law is written or how the rules were made. I don't make the law. Ask USCIS or better yet, pay an attorney and talk to them.

Read last action as effective date of last action. Once F1 student status is lost after graduation, that cannot be regained. Moreover, OPT is given for only the level of education once. If you want another OPT, you need to get another higher level degree.

You could ask a 1000 people or visit 100 forums, this is not going to change unless the law is changed.

I am done here.