Urgent help: OPT expiring

[krishnan11]

Hi,

I am currently employed with a University on OPT which is expiring in a week. My university is willing to sponsor my H1-B. In June 2011, they had applied to the Department of Labor for the prevailing wage determination. Unfortunately, due to some court case the process has been inordinately delayed and my employer is yet to receive the PDW. I understand that after my OPT expires, I can legally remain in the country for 2 months though I cannot work. My question is that suppose my PDW arrives in the next month and my H-1B is filed. However, if it is not processed before the expiration of the 60 day grace period, can I remain in the country?

Thanks so much for your help!

[kabkaba]

The university can file a cap-exempt H1 petition (assuming it qualifies as not-for-profit employer) with immediate start date. If the requested start date falls before your OPT end date + 60 day period then you can stay in the US. The employer's lawyer will have to mention that your current legal status extends up to this date and hence that makes you eligible for change of status. Once approved, you will have to start working.
Even if the employer does not qualify for cap exemption, Oct 1 falls under OPT end + 60 days so it will not matter.
If the petition is filed before OPT ends, you will be able to work continuously using cap-gap authorization. But considering that LCA takes 7 days to get approved and USCIS receipt date is further few days, it seems unlikely.