有关OPT 与 H1B 之间的身份问题

By: Beth Robertie, Esq. 不少人问到有关其OPT结束后到H-1B生效之间的合法身份问题。以下是我们对于两种不同情况的分析，以供大家参考： 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. 本文由范毅禹律师事务所提供 本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢迎读者流览查询。 www.fan-law.com (Chinese) www.fanuslaw.com (English) CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]