January 29, 2007 | In: 范毅禹律师
有关OPT 及 H1B 的空隙问题
By: Beth Robertie, Esq.
F-1身份持有人在其OPT结束后通常有60天的grace period合法停留在美国。因此，如果H-1B申请人在其OPT结束后，仍可用这60天弥补其OPT和H-1B之间(10月1日生效)的时间空隙，但是这段时间内申请人不能工作。如果申请人之前已经用过60天的grace period，那么就不能再使用这60天的grace period。以下请看我们对有关OPT及H-1B之间空隙问题的情况分析：
Scenario 1: My OPT expires on August 15. I have not yet used my OPT “grace period” of 60 days. I have an H1B Approval that takes effect on October 1. Can I stay in the U.S. during this time? Can I work for my employer and defer payment until after October 1?
Answer: Because you have not yet used your 60 day grace period, you are entitled to stay in the U.S. from August 15 until October 1 when your H1B status begins. However, because you do not have a valid work permit, you may not legally work during this time. According to USCIS and Department of Labor regulations, the rule is “if it looks like work, it is work.” In other words, you cannot “volunteer” or defer payment for activity that is normally paid work. If you do work during this time, it will be considered unauthorized employment and you are putting both you and your employer at risk.
Scenario 2: My OPT expires on June 17. I have already used my 60 day OPT grace period. I expect to have an H1B Approval that takes effect on October 1. Can I stay in the U.S. during this time? Can I work for my employer and defer payment until after October 1?
Answer: Because you have already exhausted your OPT grace period, you must leave the United States once your OPT expires and you cannot stay until October 1 when your H1B status begins. You will likely have to travel to your home country, make an appointment with the consulate, and acquire your H1B visa there. If you choose to remain in the United States, you will begin to accumulate unlawful presence, which could become an issue should you ever choose to adjust status to permanent resident. Furthermore, when you receive your H1B notice, it will likely not contain an I-94 at the bottom of the page, signifying that you will be required to process your H1B visa through your consulate. Finally, as in the above scenario, continuing to work for your current employer will constitute unauthorized work and will jeopardize both you and your employer.
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