Dealing with Gap in Employment before H1B Start Date
Posted Jan 26, 2007
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At the Murthy Law Firm we have begun receiving many H1B cases that will be filed for the 2008 fiscal year (FY) H1B cap, which begins October 1, 2007. These cap-subject cases can be received by the U.S. Citizenship and Immigration Services (USCIS) no earlier than the first business day in April, which this year is Monday, April 2, 2007. It is expected that the H1B cap will be met very quickly, so it is important to prepare now. Graduating students and their employers should have realistic expectations about the timing of their H1B approvals and the gap that is likely to occur between expiration of the Optional Practical Training (OPT) and their start date for being eligible to work in H1B status.
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When approaching the end of their time on OPT, many students are sponsored for H1B petitions by these employers so they may continue their working for them. It is important for these recent graduates and their employers to understand that it is likely there will be a gap between the time the work authorization is granted through OPT and the start date of the H1B status. There is a grace period of 60 days at the end of OPT, which allows the former student to remain in the United States, but this does not permit work to begin before October 1st, the beginning of FY2008.
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It is important that the employer understand and respect the likelihood of this gap in employment authorization. OPT employees are encouraged to apprise their employers of the probable duration of the gap in employment eligibility. If an employer cannot wait out the gap period for the employment start date, the student will want advance warning so that s/he can locate another sponsor for the H1B to meet the FY2008 cap.
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Undoubtedly, this interruption in employment eligibility is a source of frustration for many U.S. employers. They are encouraged to contact their senators and representatives in Congress to request a redress in the form of more H1Bs or elimination of the H1B quota to address this ever-growing shortage of skilled professional workers.