Can you stay in the US while H1-B is processing.

[sachinky 465]

Hi,

I have a question on behalf of a friend. He's working on F1/OPT visa that is expiring soon and is hoping to secure a H-1B in the near future. (He was previously denied a H-1B). His question is: can he stay in the US while the new application is in the works or does he have to leave and return to his home-country to finish out the processing and re-enter on his new visa?

[Boiler 45,670]

How does he intend to maintain status?

[LIFE'SJOURNEY 970]

He will have to obtain his H1B visa from his home country, so he will have to go home at some point.

[sachinky 465]

Thanks for your answers. I'll point him to this thread.

[sachinky 465]

Just so I have this straight, in order to change status, one must be legally present in the US for a work visa status adjustment (as opposed to a family-based AOS)? I was just wondering if a situation existed whereby submitting the papers (NOA1) would put you in a status-limbo?

Frankly, I have no idea about the details of how/why/where -- he's a friend of a friend and she asked me if I had any idea since I had just gone through the immigration process. All I know are the details already disclosed. F-1, graduated, OPT, denied H1B, now applying for another H1, OPT expires July 31, 2011. He apparently is adamant about not having to return home, she said he would have to and turned to me for support. I wasn't sure honestly, so I turned to VJ.

Edited June 6, 2011 by sachinky

[gigi_a 0]

He will have to obtain his H1B visa from his home country, so he will have to go home at some point.

Hmm I was on OPT and got my H1B without having to leave the US. The only thing with me was that my OPT was expiring but got the H1B on time before OPT expired.

[gigi_a 0]

Just so I have this straight, in order to change status, one must be legally present in the US for a work visa status adjustment (as opposed to a family-based AOS)? I was just wondering if a situation existed whereby submitting the papers (NOA1) would put you in a status-limbo?

Frankly, I have no idea about the details of how/why/where -- he's a friend of a friend and she asked me if I had any idea since I had just gone through the immigration process. All I know are the details already disclosed. F-1, graduated, OPT, denied H1B, now applying for another H1, OPT expires July 31, 2011. He apparently is adamant about not having to return home, she said he would have to and turned to me for support. I wasn't sure honestly, so I turned to VJ.

I had to be here and did not have to leave. There is sometimes a period when OPT expired and H1B is approved with a "start work date" 1-2 months after OPT expired. Which I though was not very nice since you start working for an employer and work for the 1 yr and then you have to take 1-2 months off before H1B kicks in. I was told I did not have to leave the US though.

Edited June 8, 2011 by gigi_a

[Harsh_77 718]

Just so I have this straight, in order to change status, one must be legally present in the US for a work visa status adjustment (as opposed to a family-based AOS)? I was just wondering if a situation existed whereby submitting the papers (NOA1) would put you in a status-limbo?

Frankly, I have no idea about the details of how/why/where -- he's a friend of a friend and she asked me if I had any idea since I had just gone through the immigration process. All I know are the details already disclosed. F-1, graduated, OPT, denied H1B, now applying for another H1, OPT expires July 31, 2011. He apparently is adamant about not having to return home, she said he would have to and turned to me for support. I wasn't sure honestly, so I turned to VJ.

Your friend is absolutely wrong on this one.

The day his OPT ends and he does not have any other visa he becomes illegal. He has to leave US and if his second H1b gets approved he will have to visit nearest embassy to get his H1b stamped on his passport.

[Saddle Bronc 124]

For the OP, what citizenship does your "friend" have? Asking as there may be another alternative entirely.

[sachinky 465]

He's an Indian, we attended the same college but he's a year or so younger than I am so I don't really know him too well.

Thanks for your help, everyone.

[Harsh_77 718]

Sorry no other alternative he has to leave. If he does not thinking he can stay and it might not look a big deal at this time, but will come and haunt him later.

When he approached consulate to get his H1b stamped or when he applies for GC – they would see a break in his status and his illegal status – unfortunately if he is filing for GC based on employment the overstay would not be forgiven.

[Saddle Bronc 124]

Sorry no other alternative he has to leave. If he does not thinking he can stay and it might not look a big deal at this time, but will come and haunt him later.

When he approached consulate to get his H1b stamped or when he applies for GC – they would see a break in his status and his illegal status – unfortunately if he is filing for GC based on employment the overstay would not be forgiven.

BTW, the other potential alternative I mentioned (which didn't work anyway, as it would have required the OP's friend to be a Canuck) does not remove the obligation to leave the US.

[Harsh_77 718]

BTW, the other potential alternative I mentioned (which didn't work anyway, as it would have required the OP's friend to be a Canuck) does not remove the obligation to leave the US.

That might work, but who knows if the second H1B application would be approved. First thing would be why was the first H1 rejected in first place and now getting a second H1 would be difficult.

[fromtheotherside 0]

ALOT of people are DEAD wrong on here!!!

There is a definite possibility your friend will not have to leave at all, ever.

It is very possible that if the H-1B petition is approved by July 31, 2011 (the date you said his F-1/OPT expires), your friend's OPT will automatically be extended until October 1, when he will then automatically change status to H-1B. If the H-1B petition is legit, but just taking awhile to process, I would suggest requesting that the petition be filed Premium Processing, which costs $1225, but gives a decision within 15 days. Its really close to the timeline now, but this is a very viable option.

I've seen hundreds, literally, of F-1/OPT workers get their status extended until they can begin working on their H-1B. This is possible, and I suggest our friend speak to his F-1 employer, and the attorney (that they hopefully used) to get some concrete answers ASAP.

Areas of concern: why was the H-1B denied? was it actually denied or did the H-1B limit just run out for the fiscal year? remember only 65000 H-1B are issued each fiscal year by the government.

Good luck!

[fromtheotherside 0]

He will have to obtain his H1B visa from his home country, so he will have to go home at some point.

Sorry, you're wrong. You shouldn't offer advice when you don't know what you're talking about.

#1 if an H-1B visa is approved before an F-1/OPT expires, the OPT automatically extends until the employer begins working on H-1B, which is usually October 1 (USCIS fiscal year) This is assuming an attorney, or other competent individual filed the H-1B petition with a request to extend the F-1 status temporarily until the H-1B becomes valid. This is normal procedure at any competent immigration law firm.

#2 There is no rule that says someone must obtain an H-1B visa from their home country. You can go to ANY U.S. consulate abroad to obtain your visa with an approved petition. It is recommended that you return home, because it is faster and easier, but not required.