有關OPT 與 H1B 之間的身份問題

By: Beth Robertie, Esq. 不少人問到有關其OPT結束後到H-1B生效之間的合法身份問題。以下是我們對於兩種不同情況的分析，以供大家參考： 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. 本文由範毅禹律師事務所提供 本律師事務所精辦各類勞工應聘及專業移民申請 (包括H-1，L-1，EB-1，EB-2，NIW，勞工卡，綠卡等申請)。所有申請由多位美籍律師及擁有15年經驗的範毅禹律師親自處理，我所並特設中英移民網站。內有最新移民新聞資訊及由律師主持的移民問答集，歡迎讀者流覽查詢。 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]