Kn

Hi,
I am on F1 Visa. My OPT expires on May 10, 2004.

I have these questions :

a) Is it Ok if i apply for H1B in April 2004 , and stay in the US
without working till October 2004 (since that is when the visas are
approved for the FY 2005).

b) What would happen if i apply for a H1B visa in April and also get
an admission for a 2nd Master's Degree in Summer Semester (May 2004).

c) If the H1B visa that i apply in April 2004 is approved (starting
from October 2004), would it be cancelled if i join a university for
my second master's degree from Summer semester i.e May 2004.

d) Can i Work in US immediately after my H1 gets approved for next
fiscal year, given that my OPT expired on May 10, 2003.

I have very little time. I would really appreciate if someone can
answer my questions asap.


Thanks a lot.
-KN

Sylvia Ottemoeller

"kn" <> wrote in message
news:...

    > I am on F1 Visa. My OPT expires on May 10, 2004.
    > I have these questions :
    > a) Is it Ok if i apply for H1B in April 2004 , and stay in the US
    > without working till October 2004 (since that is when the visas are
    > approved for the FY 2005).

No, assuming your prospective employer is subject to the H-1B cap, if the H
petition is filed right now. This is because the requested start date for
H-1B must be at the latest, the day after your currently authorized stay in
the U.S. Right now you can stay until the end of the grace period of 60
days after the F-1 OPT expiration, or about July 10, 2004. The employer
cannot ask for a July 11, 2004 start date, because of the cap.

In the past, the government issued a special regulation which allowed F-1
and J-1 status holders with D/S, whose prospective employers submitted an
H-1B petition requesting a change of status, to stay in the U.S. until
October 1 of the year, despite the F and J status plus grace period actually
ending before October 1. However, such a law or regulation has not yet been
passed this year.

    > b) What would happen if i apply for a H1B visa in April and also get
    > an admission for a 2nd Master's Degree in Summer Semester (May 2004).

Right now the H-1B petition won't help you stay in the U.S. If it is filed
immediately, it should be "free floating" (that is, not ask for change of
status), and request an October 1, 2004 start date.

If you are admitted to another academic program which qualifies for F-1
status, you can effect an F-1 transfer. Check with the international
student adviser of your prospective school to see if the new program starts
soon enough for a smooth transfer.

    > c) If the H1B visa that i apply in April 2004 is approved (starting
    > from October 2004), would it be cancelled if i join a university for
    > my second master's degree from Summer semester i.e May 2004.

I don't concede that the H-1B petition with request for change of status
should be filed.

If the H-1B petition is filed free-floating and approved, that approval is
valid as long as the approval period (which can be up to 3 years), if the
employer does not withdraw the petition. Because no change of status is
requested, the approval does not affect the status that you actually hold at
the time of the approval. You would have to leave the U.S. and re-enter in
order to get into H-1B status.

    > d) Can i Work in US immediately after my H1 gets approved for next
    > fiscal year, given that my OPT expired on May 10, 2003.

Could you rephrase the question, in light of the above? Not sure what you
are asking. Just be aware that you will not be working for any employer
(which is subject to the cap) in H-1B status before 10/01/2004.

Anthony

Sylvia,

Interestingly, I shared the similar circumstance of OP here. I filed for H1B
application within the 60 days grace period AFTER the expiration date of
OPT. The result was the H1B petition was approved BUT the change of status
was denied, saying that I filed after the expiration of OPT therefore I was
no longer in valid status, therefore, I had to leave the US and apply for
H1B in US consulates of home country.

I think the immediate question that people want to know is whether 60-day
grace period (after the expiration OPT) is still considered as a valid
status and can be used to file for any application. I had some conflicting
views in the past.

Thanks

Anthony

"Sylvia Ottemoeller" <> wrote in message
news:c20kis$sdh$...
    > "kn" <> wrote in message
    > news:...
    > > I am on F1 Visa. My OPT expires on May 10, 2004.
    > >
    > > I have these questions :
    > >
    > > a) Is it Ok if i apply for H1B in April 2004 , and stay in the US
    > > without working till October 2004 (since that is when the visas are
    > > approved for the FY 2005).
    > No, assuming your prospective employer is subject to the H-1B cap, if the
H
    > petition is filed right now. This is because the requested start date for
    > H-1B must be at the latest, the day after your currently authorized stay
in
    > the U.S. Right now you can stay until the end of the grace period of 60
    > days after the F-1 OPT expiration, or about July 10, 2004. The employer
    > cannot ask for a July 11, 2004 start date, because of the cap.
    > In the past, the government issued a special regulation which allowed F-1
    > and J-1 status holders with D/S, whose prospective employers submitted an
    > H-1B petition requesting a change of status, to stay in the U.S. until
    > October 1 of the year, despite the F and J status plus grace period
actually
    > ending before October 1. However, such a law or regulation has not yet
been
    > passed this year.
    > > b) What would happen if i apply for a H1B visa in April and also get
    > > an admission for a 2nd Master's Degree in Summer Semester (May 2004).
    > Right now the H-1B petition won't help you stay in the U.S. If it is
filed
    > immediately, it should be "free floating" (that is, not ask for change of
    > status), and request an October 1, 2004 start date.
    > If you are admitted to another academic program which qualifies for F-1
    > status, you can effect an F-1 transfer. Check with the international
    > student adviser of your prospective school to see if the new program
starts
    > soon enough for a smooth transfer.
    > > c) If the H1B visa that i apply in April 2004 is approved (starting
    > > from October 2004), would it be cancelled if i join a university for
    > > my second master's degree from Summer semester i.e May 2004.
    > I don't concede that the H-1B petition with request for change of status
    > should be filed.
    > If the H-1B petition is filed free-floating and approved, that approval is
    > valid as long as the approval period (which can be up to 3 years), if the
    > employer does not withdraw the petition. Because no change of status is
    > requested, the approval does not affect the status that you actually hold
at
    > the time of the approval. You would have to leave the U.S. and re-enter
in
    > order to get into H-1B status.
    > > d) Can i Work in US immediately after my H1 gets approved for next
    > > fiscal year, given that my OPT expired on May 10, 2003.
    > Could you rephrase the question, in light of the above? Not sure what you
    > are asking. Just be aware that you will not be working for any employer
    > (which is subject to the cap) in H-1B status before 10/01/2004.

Kn

Sylvia,
Thanks for your answers. I have a couple of other questions.

a.) I do have an admission for a 2nd master's degree from Summer
Semester 2004. Can i join the new program (considering that i am on
OPT now)?

b.) Can i discontinue the program if i get a job and transfer my
status to H1B? Are there any problems in changing from F1 to H1 in the
middle of your degree program. Would i be needing to go back to the
home country for stamping?

c.) I have some interviews with Universities. I heard that higher
education and non-profit organizations are an exempt from the present
H1 cap that has been reached. Is it true?


Thanks,
**KN**

Sylvia Ottemoeller

"Anthony" <NoSpam@NoSpam> wrote in message
news:...

    > Interestingly, I shared the similar circumstance of OP here. I filed for
H1B
    > application within the 60 days grace period AFTER the expiration date of
    > OPT.

Yes, but the question is: did the 60 day grace period extend until at least
September 30 of that year, or was it one of those years where INS allowed
F-1 and J-1 status holders with "D/S" on their I-94s to be automatically
extended to 10/01 of the year?

If not, you don't *know* that the change of status was denied because the
petition was filed during the grace period. The denial may have been for
the more obvious reason that the temporary status did not carry you all the
way to the earliest possible requested start date of October 1.

The result was the H1B petition was approved BUT the change of status
    > was denied, saying that I filed after the expiration of OPT therefore I
was
    > no longer in valid status, therefore, I had to leave the US and apply for
    > H1B in US consulates of home country.
    > I think the immediate question that people want to know is whether 60-day
    > grace period (after the expiration OPT) is still considered as a valid
    > status and can be used to file for any application. I had some conflicting
    > views in the past.

Yes, this is controversial, and I have heard of a few denials of a change of
status application filed during a grace period. The vast majority are
approved, however, for some reason. It is worth a try to ask for a change
of status during the grace period, if you have nothing to lose.

    > "Sylvia Ottemoeller" <> wrote in message
    > news:c20kis$sdh$...

    > > "kn" <> wrote in message
    > > news:...

    > > > I am on F1 Visa. My OPT expires on May 10, 2004.
    > > >
    > > > I have these questions :
    > > >
    > > > a) Is it Ok if i apply for H1B in April 2004 , and stay in the US
    > > > without working till October 2004 (since that is when the visas are
    > > > approved for the FY 2005).
    > >
    > > No, assuming your prospective employer is subject to the H-1B cap, if
the H
    > > petition is filed right now. This is because the requested start date
for
    > > H-1B must be at the latest, the day after your currently authorized stay
in
    > > the U.S. Right now you can stay until the end of the grace period of 60
    > > days after the F-1 OPT expiration, or about July 10, 2004. The employer
    > > cannot ask for a July 11, 2004 start date, because of the cap.
    > >
    > > In the past, the government issued a special regulation which allowed
F-1
    > > and J-1 status holders with D/S, whose prospective employers submitted
an
    > > H-1B petition requesting a change of status, to stay in the U.S. until
    > > October 1 of the year, despite the F and J status plus grace period
actually
    > > ending before October 1. However, such a law or regulation has not yet
been
    > > passed this year.
    > >
    > > > b) What would happen if i apply for a H1B visa in April and also get
    > > > an admission for a 2nd Master's Degree in Summer Semester (May 2004).
    > >
    > > Right now the H-1B petition won't help you stay in the U.S. If it is
filed
    > > immediately, it should be "free floating" (that is, not ask for change
of
    > > status), and request an October 1, 2004 start date.
    > >
    > > If you are admitted to another academic program which qualifies for F-1
    > > status, you can effect an F-1 transfer. Check with the international
    > > student adviser of your prospective school to see if the new program
starts
    > > soon enough for a smooth transfer.
    > >
    > > > c) If the H1B visa that i apply in April 2004 is approved (starting
    > > > from October 2004), would it be cancelled if i join a university for
    > > > my second master's degree from Summer semester i.e May 2004.
    > >
    > > I don't concede that the H-1B petition with request for change of status
    > > should be filed.
    > >
    > > If the H-1B petition is filed free-floating and approved, that approval
is
    > > valid as long as the approval period (which can be up to 3 years), if
the
    > > employer does not withdraw the petition. Because no change of status is
    > > requested, the approval does not affect the status that you actually
hold at
    > > the time of the approval. You would have to leave the U.S. and re-enter
in
    > > order to get into H-1B status.
    > >
    > > > d) Can i Work in US immediately after my H1 gets approved for next
    > > > fiscal year, given that my OPT expired on May 10, 2003.
    > >
    > > Could you rephrase the question, in light of the above? Not sure what
you
    > > are asking. Just be aware that you will not be working for any employer
    > > (which is subject to the cap) in H-1B status before 10/01/2004.

Sylvia Ottemoeller

"kn" <> wrote in message
news:...

    > a.) I do have an admission for a 2nd master's degree from Summer
    > Semester 2004. Can i join the new program (considering that i am on
    > OPT now)?

Yes, if an F-1 transfer is properly executed by the second school.

    > b.) Can i discontinue the program if i get a job and transfer my
    > status to H1B?

Yes, after 10/01/04 or sooner if the employer is exempt from the cap.

Are there any problems in changing from F1 to H1 in the
    > middle of your degree program. Would i be needing to go back to the
    > home country for stamping?

I don't see any particular problems, except for losing all that tuition
money. If the H-1B employer files the H-1B petition after the F-1 transfer,
requests an H-1B start date of 10/01/04 or later, and asks for a change of
status from F-1 to H-1B, and the petition is approved, then no, you don't
have to go back to your home country to obtain an H-1B visa stamp.

    > c.) I have some interviews with Universities. I heard that higher
    > education and non-profit organizations are an exempt from the present
    > H1 cap that has been reached. Is it true?

Institutions of higher education, non-profit research institutions, and
government research institutions are exempt. Other than research
institutions, non-profit organizations are not exempt.

Kn

From: Sylvia Ottemoeller ()
Subject: Re: F1 Visa- OPT expiring...Help


View this article only
Newsgroups: alt.visa.us
Date: 2004-03-01 16:30:25 PST


"kn" <> wrote in message
news:...

    > I am on F1 Visa. My OPT expires on May 10, 2004.
    > I have these questions :
    > a) Is it Ok if i apply for H1B in April 2004 , and stay in the US
    > without working till October 2004 (since that is when the visas are
    > approved for the FY 2005).

No, assuming your prospective employer is subject to the H-1B cap, if
the H
petition is filed right now. This is because the requested start date
for
H-1B must be at the latest, the day after your currently authorized
stay in
the U.S. Right now you can stay until the end of the grace period of
60
days after the F-1 OPT expiration, or about July 10, 2004. The
employer
cannot ask for a July 11, 2004 start date, because of the cap.

In the past, the government issued a special regulation which allowed
F-1
and J-1 status holders with D/S, whose prospective employers submitted
an
H-1B petition requesting a change of status, to stay in the U.S. until
October 1 of the year, despite the F and J status plus grace period
actually
ending before October 1. However, such a law or regulation has not
yet been
passed this year.


Hi Sylvia,
Thanks for your replies. In reference to the above answer
you have given, do you know where i could find that a law or a
regulation has been passed. Is it notified on the INS website? Would
you know more about the chances of that kind of a law being passed
this year especially since the H1B quota has been reached pretty soon.

Thanks a lot,
KN.

Ingo Pakleppa - see web site for email

On Thu, 04 Mar 2004 15:17:07 -0800, kn wrote:

    > From: Sylvia Ottemoeller ()
    > Subject: Re: F1 Visa- OPT expiring...Help
    >
    >
    > View this article only
    > Newsgroups: alt.visa.us
    > Date: 2004-03-01 16:30:25 PST
    >
    >
    > "kn" <> wrote in message
    > news:...
    >
    >> I am on F1 Visa. My OPT expires on May 10, 2004.
    >> I have these questions :
    >> a) Is it Ok if i apply for H1B in April 2004 , and stay in the US
    >> without working till October 2004 (since that is when the visas are
    >> approved for the FY 2005).
    >
    > No, assuming your prospective employer is subject to the H-1B cap, if
    > the H
    > petition is filed right now. This is because the requested start date
    > for
    > H-1B must be at the latest, the day after your currently authorized
    > stay in
    > the U.S. Right now you can stay until the end of the grace period of
    > 60
    > days after the F-1 OPT expiration, or about July 10, 2004. The
    > employer
    > cannot ask for a July 11, 2004 start date, because of the cap.
    >
    > In the past, the government issued a special regulation which allowed
    > F-1
    > and J-1 status holders with D/S, whose prospective employers submitted
    > an
    > H-1B petition requesting a change of status, to stay in the U.S. until
    > October 1 of the year, despite the F and J status plus grace period
    > actually
    > ending before October 1. However, such a law or regulation has not
    > yet been
    > passed this year.
    >
    >
    > Hi Sylvia,
    > Thanks for your replies. In reference to the above answer
    > you have given, do you know where i could find that a law or a
    > regulation has been passed. Is it notified on the INS website? Would
    > you know more about the chances of that kind of a law being passed
    > this year especially since the H1B quota has been reached pretty soon.

The problem is that no regulation about this has been published. Unless
USCIS changes that soon, what that means is that you will be treated like
anybody else whose F-1 ends: you have to leave the country after the grace
period.