Both my wife and I are working pursuant to OPT authorization. Both of our OPT EADs will expire this coming May. …

… My employer will be filing an H1B petition for me for the start date of October 1st and my wife would like to file for H-4 based on that filing. Are we going to be able to maintain our statuses from the expiration of our OPT until the first day of my employment on October 1st? (28.Mar.2014)

Answer

Once your OPT EAD expires, both your F-1 status and your employment authorization will continue based on the cap-gap benefit. If your petition is approved or pending, your OPT work authorization will be extended until October 1st.

Your wife’s F-1 status will expire 60 days after the expiration of her OPT EAD. Therefore, there will be a gap between the expiration of her F-1 and the requested start date of October 1st for her H-4 status as your spouse. In order for your wife to continue in valid status, she should change her F-1 to F-2 dependent status so that she may benefit from the cap-gap provision, which applies to F-2 dependents of F-1 students on cap gap.

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