Navigating the OPT H-1B Transition: Stay Legal and Continue Working

If your OPT (Optional Practical Training) is expiring in two weeks and you have not received a decision on your H-1B application, you might be wondering, 'Can I continue to work legally until I hear back from USCIS?' The answer is complex, with a variety of factors to consider. This article will provide detailed guidance on what you need to know and the steps to take to navigate this challenging transition.

Understanding the Grace Period and Legal Work Status

It is important to understand the grace period after your OPT expires. After your OPT ends, you have a 60-day period during which you can stay in the U.S. However, during this time, you are not legally permitted to work. Therefore, it is crucial to ensure that you do not engage in any work during this grace period as it opens you up to potential legal issues.

H-1B Change of Status

If your H-1B petition was filed with a request for a change of status, and it is approved before your OPT expires, you can start working under H-1B status. However, if your OPT expires before the H-1B is approved, you will need to wait for the approval before you can begin working. This can create a significant gap in your work authorization, leading to potential legal issues if you are found working without authorization.

Cap-Gap Extension

If your H-1B petition was filed under the cap and you have pending OPT that expires after April 1 (the usual filing date for H-1B), you may qualify for a cap-gap extension. This extension allows you to continue working until your H-1B status begins. However, this option only applies if your H-1B is selected and the petition is pending or approved. It is important to note that the cap-gap extension applies specifically to cap-subject H-1B petitions and not to cap-exempt H-1B petitions.

Consult an Immigration Attorney

Given the complexities involved, consulting with an immigration attorney is highly advisable. They can provide personalized advice based on your specific situation, helping you to navigate the intricacies of the immigration laws that affect your work authorization.

Contacting Your Company Attorney

If your H-1B application is pending, it is important to contact your company’s attorney. Every case is unique, and understanding the reasons behind the delay can provide clarity on what steps to take next. Communication with your company’s attorney is crucial for maintaining a lawful status.

Option 1: Applying for F-1 Status

One possible option is to apply for a university that offers Day 1 CPT (Curricular Practical Training) for the fall 2017 semester. This option allows you to continue working at your current employer without affecting your employment status. Here are a few universities known to offer Day 1 CPT:

Option 2: Temporary Letter from University

As a risky but potentially viable option, you can try to secure a temporary letter from your university stating that your H-1B has been approved. This letter can potentially keep you on F-1 status for a few months, allowing you to hold off on applying for a Spring 2018 master’s program as per option 1. This could also give you enough time to ensure that your H-1B is approved in time.

My best recommendation is to opt for Option 1 as soon as possible. Following this course of action increases your chances of staying legally in the U.S. Not doing so could result in deportation, as suggested by Mr. Raghu Nandan Avula.

While the transition from OPT to H-1B can be complex, taking the appropriate steps can help ensure that you remain legally in the U.S. and continue working as intended. Remember, staying informed and maintaining clear communication with your company and legal advisors is key to navigating these changes smoothly.