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H1B application in grace period ? and change of status -help!

Chicago, IL |

Can someone apply for a cap exempt H1b in the 60 day post OPT grace period or does one have to apply the I-539 for change of status to B1/b2 in order to maintain legal status and be on pending application till H1 B is applied for.

Also in case conversion to B1/B2 needs to be done is it necessary to do it before OPT expires (reach USCIS) or can that be sent in the 60 day grace period. Is 60 day period considered as a zero status or exit period only where we cant apply for change of status ?
Any advice is highly appreciated

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Attorney answers 4


The one who asks all these questions is clearly confused and in dire need of a consultation with an experienced immigration attorney. I will begin by pointing out that H1b quota is filled for this year and it is the employer is the one who can file not the one on OPT grace period.

NYC EXPERIENCED IMMIGRATION ATTORNEYS; email:; 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.



sorry about the confusion my question was can a cap exempt employer apply for an H1 for a potential employee who is in the 60 day grace period

F. J. Capriotti III

F. J. Capriotti III


They asked about a cap-exempt position. But, I agree with your pointing out the need to have this person talk to the company's immigration attorney.


I agree with my colleague, there are cap gap regulations that may help you.

The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.


Although Mr. Segal may have missed the fact that the questioner was talking about a cap-exempt petition, he's basically right.

Either you are confused or you are trying to play-out too many 'what if' scenarios.

This is best done in consultation with the employer's immigration attorney and not a bunch of strangers on an internet blog.

Take care.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.


You can file a cap exempt H1 anytime of the year. Does it give you status to stay in the country if you file after your OPT has expired? No. The visa has to be filed while you are still in OPT status for the CAP GAP regulations to apply.

After the OPT expires students are given a grace period to leave the country. You are still considered out of status if you are trying to file any type of visa during this time.

Business Immigration Attorney. For H, L, J, EB5s, PERM and EB1/2/3 Petitions. Call 800-688-7892 or visit Law Office of Anu Gupta. The advice suggested here is for general information only and not to be construed as legal advice.