H1B lottery result not yet announced- OPT expired

Dear folks,

Please help me withmy case. My OPT expired Feb 28, 2013 and I applied H-1B visa this year (regular quota- regular processing). I am aware thatI will NOT know my lottery result in 2-4 weeks. If I get a “not selected” notice on April 20, do I have to leave the country by April 27 (including 60 day grace period from OPT) or I have to leave the contry immediately?

And if I don’t hear anything after April 27, can I still live here legally? How about I receive the “not selected” notice after April 27?

Any replies are very much appreciated.


You can remain in USA till your H1B petition is decided.   (I assume you have also applied for change of status along with H1B petition).  Your case will fall under one of the following scenes : 

Scene 1 :  If your H1B petition is not selected in lottery, then you have to leave USA by April, 27 or immediately when you know of the non-selection, whichever is later (you will not 60 days' grace period again).

Scene 2 : If your H1B petition is selected in lottery, but the same is ultimately rejected.  In this case, you are covered under "cap gap extension".  You can remain in USA till the date your H1B petition is rejected. However, since your OPT had already expired when you applied for H1B, you cannot take up any work.  

Scene 3 : If your H1B petition is approved, then you again get covered under "cap gap extension" i.e. you can remain in USA but you can start work only effective from 1st October, 2013, which is the visa effective date.  

What you should do [b]immediately[/b] is to  apply to your Designated School Officer (much before your grace period expires) along with proof of filing H1B petition [copy of petition and copy of courier receipt (Fedex, etc)] and ask for "cap gap extension".  DSO will issue you a new I-20 upto June, 2013 initially which will be a proof that you can stay in USA till the date mentioned in it.

Best of luck

(Disclaimer :  I am not an attorney and this is not a legal opinion but I believe the above to be true.  You are at liberty to obtain second opinion.  YOur DSO will guide you properly)

Thank you askavee for the reply. My understand frOm your answer is that I should have my school issue a new i20 showing cap gap till June. If I am not selected in the lottery, can I stay till June based on that new i20?? Could you please verify.

Please note that the H-1B application extends your current status at the time of the application, until the H-1B visa is issued. If you are on OPT at the time your petition is filed, your OPT is extended until the visa is issued. If you are under your grace period, the grace period is extended until the time your visa is issued. I believe the latter does not provide for employment authorization.

(Disclaimer: I am not an attorney and this is not a legal opinion but I believe the above to be true. Please make sure to confirm it with your attorney.)

The answer is “Yes”. If you check your I-94 (the small slip given to you at port of entry when you entered USA), your authorised stay in USA is “D/S” which means “Duration of Status”. In other words, you can remain in USA till you maintain status of a student. The condition of maintenance of status under the first I-20 was that you were required to take up certain credit hours of your course and not to take up unauthorised work. When you completed your study, the status ended but the same was extended by issue of a new I-20 based on which you applied for OPT Employment Card. This time, the condition of “Duration of Status” was that non-employment should not exceed 90 days. The moment there is non-employment of more than 90 days, or the date mentioned in OPT expires (whichever is earlier), the student becomes out of status and the grace period of 60 days begins. Now at this stage, if you get a new I-20 till June, 2013, your status as student continues till June. But, there may be a few complications : (1) If you know that your name is not selected in lottery (i.e. your H1B petition is returned before you apply for new I-20), then obviously you cannot even apply for new I-20 (2) If lottery result of all the petitioners is out before a new I-20 is actually issued to you, DSO will insist upon proof of your petition’s selection.
(Note : Even those students, whose H1B petition is selected in lottery, have to apply to their DSO for I-20 “cap-gap extension”, if their OPT would expire before they get their H1B visa).

(Note : The earlier disclaimer applies)


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