Legal Question in Immigration Law in Ohio

My OPT got denied, but my employer is suggesting to apply for H1b under premium service so that I can start the job (which starts in 2 weeks). I am resending my opt application and most likely I might get my opt before I get H1b. Since, this is a one year position is it possible to avoid activation of H1b once I get my EAD, as I would prefer to be on OPT status than H1b. Your help and suggestions will be much appreciated. Thanks.

Asked on 8/20/14, 7:49 pm

3 Answers from Attorneys

Marlene Hemmings Marlene Hemmings, Attorney at Law

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Unless your employer is "cap exempt", they cannot petition you for an H-1B right now anyway. It would be helpful to know why your OPT was denied, however, even if an I-129 petition is approved for an H-1B visa, your status would not be "activated" unless & until you actually started H-1B employment.

Answered on 8/21/14, 8:33 am

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Philip Eichorn Hammond Law Group

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This is an interesting fact pattern and one that needs a more careful and thorough analysis of all the facts. I suggest gathering all of your documents and submitting them to an attorney for a review and proper advice to both you and your employer. Feel free to contact us.

Answered on 8/22/14, 1:01 pm

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