OPT To H1 Cap Gap

[jeffzzang623]

My State is Georgia:

My OPT expired at the end of May, and I am currently on my 60 day "grace period". My lawyer has filed my H1-B visa application, which he says has been approved with a start date of October 1st, 2005.

That leaves me with a two month "gap" in which I will be out of status. (Between End of July and October 1st).

I know that in past years, the USCIS has issued a "Cap Gap" document which allows people in my exact situation to stay legally in this country until October 1st. This document has not been issued yet, and my lawyer has advised me that it will probably not be issued this year. My lawyer has also advised me to leave the country after my grace period ends and come back on October 1st, so as not to become illegal. However, my employer would probably not be too happy about me missing work for 2 months.

Is anyone else in this similar situation, and have any other information regarding this situation? Does anyone know if this "Cap Gap" document will be released anytime soon? What are the consequences of staying in this country during the "gap" period? Will I risk losing my H1? How serious is the risk?

Also, are there any other "ways" to get around my situation? I'm pretty sure there are tons of people who are experiencing this same situation and have a way to stay in this country during the "gap" period.

Any help or advise would be greatly appreciated. Thank you.

[ImmigAttyLana]

Even if the cap gap is allowed again this year, that will only permit you to REMAIN in the US until the start of your H-1B; it will NOT allow you to continue your employment since you have no employment authorization during that time. In fact, you have no employment authorization from the date your OPT EAD expired and continuing to work after that date without valid authorization constitutes unauthorized employment that may have negative consequences for your future ability to immigrate.

Please let me know if you have any additional questions or if I may be of further assistance to you in this matter.

[jeffzzang623]

Yes, I understand I cannot be on the payroll.

Can you please let me know if you receive any information about the cap gap document? Also are there any alternatives for me to stay during the gap? Can I leave to Canada for a few days and come back as a visitor? Will that cancel my H1?

[ImmigAttyLana]

Unless you are a Canadian, how can you come back into the US as a visitor, without a visitor's visa? If the cap gap is not permitted this year, there is no way to allow you to stay in the US between the expiratio of your OPT and the start of your H-1B.

Please let me know if you have any additional questions or if I may be of further assistance to you in this matter.