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F1 student - Can I file OPT and H1B simutaneouly

Chicago, IL |

Hi,

I am a student currently on F1. I am about to apply for OPT with start date as 4 months from now (July 2013) . I also have a full-time offer from an employer who wants to file my H1B in the current cap in this week.
I would like to know:
1. Can I file for both OPT and H1B at the same time?
2. Since both applications might reach USCIS around same time, does it negatively affect my OPT?
3. In case H1B is approved before OPT, can it be the case that the OPT approval will face problems.?

Please advise. It is really urgent as I need to take a decision at the earliest.

Thanks.

Attorney Answers 3


  1. You can but that process may have unintended circumstances. A nonimmigrant can hold multiple visa stamps in his or her passport and use those in accordance with the purpose of a particular trip. A nonimmigrant can only be in one status at the time.

    A nonimmigrant cannot change status unless the status from which the change is sought is valid on the day when the change of status application is filed. Traveling outside of the country while COS application is pending, renders the COS application abandoned.

    The last action rule applies unless additional H1B employment is claimed instead of change of status. This is why it is always dangerous to file multiple petitions at the same time.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.


  2. 1) If H-1B is accepted, OPT will not be extended.
    2) It may
    3) OPT will not be approved if H-1B is accepted

    This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.


  3. Try discussing your plans in person with a qualified immigration attorney. Filing random applications pro se may bring complexities to your future.

    DISCLAIMER The answer given above by the lawyer serves for educational purposes only and provides general information and a basic understanding of the applicable law. Take notice that the answer above does not create an attorney-client relationship as this website is not intended to provide anyone a specific legal advice. Anyone using the site expressly consents that there is no attorney client privilege between any person and any attorney responding. Further take notice that the site should not be used as a crude substitute for any professional and competent legal advice by a licensed professional attorney in the applicable jurisdiction. The attorney above attempted to provide competent professional information, however, the law and its applications may change frequently and vary greatly from other U.S. jurisdictions and locales. Therefore, any information and materials provided above are general in nature, and may not apply to specific factual and legal circumstances related to one’s personal legal issues. Contact an experienced criminal defense lawyer admitted to practice in your State under an attorney-client privilege to further receive a competent legal advice before making any important decisions about your particular legal issue. For further inquiries please contact: Attorney Alexander Ivakhnenko 1021 West Adams, 102, Chicago, Illinois 60607 773-562-8602 http://alexanderivakhnenko.com

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