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Immigration Issues/90 days unemployment between OPT & H1-B?


QUESTION: Dear Ramasamy,

My FY 2009 H1-B had been approved for Company A while I was working with my OPT there. With the end of my OPT (15 July 2008), we mutually decided that I stop working in Company A.

Having been aware of the max 90 day unemployment period, I have been intensively interviewing with various companies and finally accepted a very attractive offer on 19 September 2008. (Haven't worked since July 15).

The new company said that it will take care of filing the new H1-B for me (to transfer onto its name), and that my start day will be October 1st.

Now, 90-allowed-days make the deadline October 15;
- Is this the deadline that the new company needs to file H1-B, or
- Is this the deadline that the receipt notice should be received from USCIS, or
- Is this the deadline that the H1-B filing should be approved and I should be starting to work?

Shortly, when will I be able to start working; Do I have to wait for just receipt notice, or approval?

Also, given the current date (Sep 21) and the time required for "H1-B filing (1-2 wks) and premium processing (2 wks)", when is realistic for me to be able to start working?

Thank you so much in advance, and I am grateful for your insights...

Kind Regards,


The deadline is Oct 1, 2008. You are confused between the 90 day unemployment period and the 60 day grace period. However, in your case you start date for moving to H status is Oct 1, 2008 you should start the process immediately and use premium processing.

Ramasamy Krishnan

---------- FOLLOW-UP ----------

QUESTION: Thank you Ramasamy,

But what I dont understand is there is no grace period in my case, due to Cap-Gap extension, not right?

So there is no 60 day issue now, but 90 day issue, isn't there?

I know, I'm pushing the company to be fast, but can you tell me whether I can start working, without waiting for the approval with just USCIS' receipt notice? Also, why Oct 1 but not Oct 15?

Thank you so much as always, I am grateful!



ANSWER: You need to provide me with the following information for me to answer your question.
1) When does your OPT end?
2) What is the start date for your H-1B filed by Company A?
3) Was the H-1B applied as a change of status.

---------- FOLLOW-UP ----------

QUESTION: Dear Ramasamy,

- My OPT ended 15 July 2008, and I ended working.
- Start date for the H1-B filed by Company A is October 1, 2008.
- I don't know if it was filed as a change of status (I have the copy of my H1-B file, but cannot see whether change of status -- Any directions on how to figure it out?). But it may have been filed not as change of status because back then there was no Cap-Gap extension granted by the USCIS and I was expected to leave and re-enter.

Kind Regards.

Since your F-1 OPT ended on July 15th and your H-1B was filed for visa processing (though it could have been changed it to Change of Status, since the USCIS later provided this benefit) you are allowed to stay in the US until Sept 15th (60 day grace period). I would advise you to leave the country immediately and re-enter the US on H-1B. Or request your current company to file for a change of status and continue your employment until you change to another employer.

I suggest that you consult with an immmigration attorney to confirm. As this forum is suitable only for general guidance.

Ramasamy Krishnan

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Ramasamy Krishnan


Immigration particularly business immigration and National Interest Waivers.


I have over 7 years of experience in all facets of immigration law. Specifically focusing on filing of National Interest Waivers (NIW), Alien of Extraordinary Ability and Outstanding Researchers/Professors petitions for Ph.D's and other advanced degree professionals. I have also assisted clients in numerous PERM, H-1b, L and other nonimmigrant visa applications. I am a partner at the law firm Ashley & Krishnan,

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