Dr. William:

As a F-1 student, I have a Master degree in science, and my Optional Practical Training will end on May 20 of this year. I have applied the H-1B visa submitted by my current employer of Optional Practical Training, but I can not start to work for the employer with the H-1B visa before the October 1, 2007, due to the year 2007 H-1B cap number allocation. What can I do to avoid the out of status after the end of my Optional Practical Training and before the October 1, 2007?

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Answer:

In your case, there may be no difficulty to obtain the employer's H-1B petition approval, if the employer is in a real business and you also have a temporary state permit for internship of Optional Practical Training. But, there may be a question whether your application for change of nonimmigrant status from a F-1 student to a H-1B worker is approvable by USCIS, because you can not maintain a valid status until October 1, 2007.

During the H-1B cap gap, the rule requires that the alien's nonimmigrant status must remain valid on October 1 of that year, which is October 1, 2007 in your case. The F-1 student has a grace period of 60 days after completion of F-1 program or OPT training, but it still can not cover to October 1, 2007 after the end of your Optional Practical Training. So you may have to apply for a H-1B visa at a Consulate in your home country, and return to the U.S. to work for the U.S. employer.