Website Q & A - March 16, 2007

Evaluating the possibility of H-1B approval for an accountant in a small company and thoughts on how to deal with the gap between OPT ending and October 1st

Dear Mr. Lee,

I just graduated with an Accounting degree and have a job with a small company which has total sales of $300,000-$400,000 per year. I am listed as the single employee because the manager is not legal. My F-1 optional practical training expires on July 10, 2007. I am interested in applying for an H-1B visa to continue working for the company. Should I have the company sponsor me for the H-1B visa? What should I do about the gap of time between the ending of my practical training and the beginning date that I could be allowed to work under an approved H-1B, October 1st?

Dear reader:

I suggest that you attempt to find yourself another organization that can sponsor you for the H-1B instead of the one that you now have. This is the type of case that could be problematic in approving given the size of the company and its sales figures. The U.S.C.I.S. may very well question the need for an accountant in a company of your size and point out that the company would come off much better financially with just hiring an outside accountant. Insofar as the gap is concerned, your 60 days of grace period will only take you into September and will not cover until October 1st. Assuming that an H-1B is filed for you, you may wait to see what U.S. Immigration and Customs Enforcement (ICE) decides to do with persons in your situation who are caught in the gap. This is a decision which is made on a year by year basis by the government. Other options in the event that you do not necessarily wish to wait for the ICE determination is to leave the country temporarily, or apply for some other non-immigrant status which can keep you in the U.S. during the period of the gap. I do note that U.S.C.I.S. looks to see whether the reasons for applying to change to another non-immigrant status are legitimate.

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The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.