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ANSWERS TO QUESTIONS ABOUT H-1B VISA RELATED ISSUES

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by Sharlene Sharmila Richards, Immigration Lawyer
Email at srichardslaw@aol.com

Q: What is a cap gap extension?
A: A cap gap extension only applies to eligible F-1 students. It allows the F-1 student to bridge the gap between the end of his or her F-1 student status and the commencement of his or her H-1B status on October 1st. The effect of this is the F-1 student is allowed to remain in the US during that ‘gap’ period between the end of his or her F-1 status and the time he or she commences employment under the H-1B program.
Q: Are all F-1 students eligible for this Cap-gap extension?
A: No. This cap gap extension provision only applies to F-1 students who as of April 1st were either on approved OPT (Optional Practical Training) or those who are in their 60 day grace period and have already have a pending or approved H-1B petition which was filed before the expiration of their OPT or 60 day grace period.
Q: Can you explain who can and cannot work while under the cap gap extension?
A: If your H-1B employer has filed the H-1B petition for you and it has been received by USCIS before the expiry of your OPT, you qualify for an extension of your OPT employment authorization. On the other hand, if the filing and receipt by USCIS occurred after your post completion OPT expiration date but during the 60 day grace period after the OPT, your F-1 status and authorization to remain in the United States will be extended but you are not permitted to work.
Q: My OPT (Optional Practical Training) will be expiring this June. My employer wishes to petition to change my status to H-1B for me. Do I need to leave the United States?
A: If your H-1B petition is timely filed in April 2018 and filed before the expiry of your current F-1 status, you will become eligible for the automatic cap-gap extension. This cap-gap extension will continue until the H-1B petition has been adjudicated. If your H-1B petition is selected for processing and subsequently approved, your F-1 ‘cap-gap’ extension will continue until September 30th, 2018. In addition to that, since your work authorization under OPT is expiring in June 2018, you are eligible to apply for work authorization to work until September 30th, 2018. However, if the petition was nor selected or if denied, you will have the 60 day grace period from the date of the notification of non-selection or date of denial or the program end date, whichever is the later, to depart the United States.
Q: My OPT will expire next week and will be in the 60 day grace period commencing March 21st, 2018. My H-1B petition will be filed on this April 2018. Can I continue to work for the employer until my H-1B has been approved?
A: If your H-1B petition was filed after the expiration of your OPT but within the 60 day grace period after the expiration of the OPT, you are only eligible for the cap gap extension. However, work authorization for the cap-gap cannot be extended. You must cease working for the employer when your OPT ends.
Q: I have a two year Associates Degree and four years of work experience? Do I meet the educational requirements for a Bachelor Degree equivalency?
A: To be eligible for H-1B, you must at least have a Bachelor’s Degree or equivalent to one. In most cases, this typically means a four year degree. Your work experience is presently insufficient as three years of work experience in the requisite field equates to one year of university education. You will most likely need an additional two years of work experience in that particular field in order to have the equivalency of a Bachelor’s degree.
Q: I have a Bachelor’s Degree from India. What is needed to apply for the H-1B visa?
A: All foreign degrees have to be first evaluated to determine whether it is equivalent to the undergraduate degree offered by an accredited university or institution of higher learning in the United States. The degree evaluation is normally conducted by a third party credential evaluation service. In addition to that, the Bachelor’s degree you possess must be in the field related to your intended H-1B occupation.
Disclaimer: Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.
My Bio
Sharlene Sharmila Richards is a licensed Immigration lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. You may contact her at telephone number 713-623-8088 or by email at srichardslaw@aol.com to schedule a free consultation to discuss your case.


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