F2A Status, OPT, and H1B

[Andreavespa 3]

Hi Everyone,

I am new in the forum but I have been following your discussion lately, and I have finally registered.

My name is Andrea, I am from Italy, and I am married to a LPR. My priority date is December 26th, 2013. My case is at NVC.

I have a few questions for you.

- I am currently on OPT, which will expire on June 1st, 2015. My employer seems to be willing to offer me a H1B visa in case I do not get my papers through my wife before that date, even though I am afraid the lottery will be a big challenge. Do you think is it going to be a problem having filed I-130 prior to applying for employment-based visa?

- Based on previous cases, what is the usual time it takes to have the right to work after the priority date becomes current? I mean, if my priority date becomes current in - let's say - January, how much time will it take me to get the authorization to work not to ask my employer to sponsor me?

- My wife and I fought with out attorney, who does not returns our calls anymore and does not forward documents sent by NVC (I know my case is there because, after several months and after having read on this forum that I was supposed to have received something, I tried to call NVC myself), who can this impact my case? Is it possible to file the remain of the case (AOS, etc.) by myself or an attorney is needed?

- And now, the $1,000,000 question: do you think my priority date will become current before my OPT expires or my wife becomes a citizen (December 2016)?

Thanks in advance for your help, I look forward to get to know all of you better in the upcoming months!

Andrea

[aaron2020 11,651]

Hi,

1. Your employer will not be able to get you an H1-b visa before your OPT expires. The next opportunity to file is April 2015 for visas starting on Oct 1, 2015, for the next fiscal year.

2. Once your PD becomes current, you can file for an AOS. It will take about 90 days for you to get an EAD card authorizing you to work.

3. You can file the rest by yourself. Inform the NVC that you are revoking the authorization allowing the attorney to represent you. File a complaint with the local and state legal bars against your attorney for failing to communicate with you.

4. Maybe. No one can tell you for certain. It's all guesses based on facts that is not public.

Best of luck.

[Andreavespa 3]

Hi Aaron,

Thanks for your reply.

1. Yes, eventually I will apply for H1-b that will become effective in October, but I will have a "grace" or "relief" period from June (when my OPT expires) to September 30th.

2. Thanks, I didn't know it was taking so long, even in case I am in the US already.

3. I sent an email a month ago, but NVC has not gotten back to me yet. I am getting nervous because the other day my wife was finally able to communicate with him and he said he did not receive anything from NVC, while NVC told me the opposite. I hope to not jeopardize my case in any way because of this situation.

4. I know

Basically what I am hoping for is (obviously) to have the PD current ASAP; then, in case in March 2015 is still not, I will apply for H1-b through my employer; in case I am not selected for the lottery, I will still have some hope for the date to become current before June 2015; otherwise, I will probably ask to get transferred to a foreign branch (London, for instance) and wait to be able to apply for AOS.

In this regard, if I am legally in the US and I apply for AOS BUT in the meantime (after I applied) my OPT expires, what does happen? Do I have to leave the country or that is going to help me maintaining the legal status?

[aaron2020 11,651]

1. You do not have a "grace" or "relief" period between the OPT and an H1b. You would be working without authorization (i.e. illegally) which puts your H1b at risk for revocation or denial.

There is no grace or relief period. No idea where you are getting that from.

5. You can not apply for AOS from outside the US. You need to apply for an immigration visa.

If your PD is current, the AOS allows you to be in the US. It does not allow you to work. You need the EAD to work and it takes 90 days after filing AOS to get it.

[Andreavespa 3]

1. You do not have a "grace" or "relief" period between the OPT and an H1b. You would be working without authorization (i.e. illegally) which puts your H1b at risk for revocation or denial.

There is no grace or relief period. No idea where you are getting that from.

5. You can not apply for AOS from outside the US. You need to apply for an immigration visa.

If your PD is current, the AOS allows you to be in the US. It does not allow you to work. You need the EAD to work and it takes 90 days after filing AOS to get it.

http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/extension-post-completion-optional-practical-training-opt-and-f-1-status-eligible-students-under-h-1b-cap-gap-regulations

The period of time when an F-1 student’s status and work authorization expire through the start date of their approved H-1B employment period is known as the "Cap-Gap".

Cap-Gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.

Cap-Gap Extensions

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. This is referred to as filling the "cap-gap," meaning the regulations provide a way of filling the "gap" between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Eligibility for an Extension

H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, 2013 while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the "grace period").

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30. If the student’s H-1B petition is denied, withdrawn, revoked, or is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.