F-1, H-4, and H-1B Cap-Gap

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Q. I am currently in the United States on an F-1 (Student Visa). While I am studying, I am interested in a volunteer position that is related to my field of study. Can I legally take this position?

A.No, volunteering while you are on an F-1 status is not allowed. Your employer (or the entity) for whom you are volunteering is required to pay your wages and even if you are not paid, you will be in violation of your status. You cannot work without explicit work authorization.

Q.I am currently in the United States on an H-4 status. When my husband’s employer extended his H-1B status, I did not receive an extension for my H-4 status. I was under the impression that my status is automatically extended when my husband’s H-1B is extended. My I-94 expired 3 months ago. What do I do?

A. It is important to note that there is no automatic H-4 extension. You have two options: you can file a request with the USCIS (called nunc pro tunc) requesting an extension of your status even though you are late and out of status. Your other option is to step out before you accumulate 180 days of unlawful presence. This way you can apply for a new H-4 visa at the US consulate in your home country and still be able to return to the United States without any legal issues. If you decide to apply for your extension in the USA, even though your status has expired, you must show that your
i) Failure to file was due to extraordinary circumstances
ii) The extraordinary circumstances were beyond your control
iii) Your explanation must be reasonable in the context of what happened
iv) You have not otherwise violated your status
v) You must not be in removal/deportation proceedings
It is important to consult an experienced attorney if you decide to take this chance because if your application with the USCIS is denied, you may accumulate 180 days of unlawful presence and would be subject to a 3-year bar upon leaving the US.

Q. Can I travel during the H-1B Cap-Gap?

A. If you have cap-gap relief and you decide to travel outside the United States, you will not be able to return until the last 10 days in September, assuming that you have secured your H-1B visa.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.

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