I am currently in the U.S. on an OPT and my employer filed an H-1B petition. Does the new executive order affect my H-1B application?

By June 25, 2020December 2nd, 2020H-1B and E-3 Visa
Photo courtesy of Evonne on Flickr, labeled for reuse: https://www.flickr.com/photos/evoo73/9140462500

Let’s analyze the following scenario: You are currently in the U.S. on an OPT status or on a cap-gap extension and your employer filed an H-1B visa  change of status application. The H-1B  application is currently pending with USCIS and you may be wondering if the executive order that was signed on June 22, 2020 applies to your situation.

The short answer is no. The new executive order only applies to H-1B visa applicants who are currently outside the U.S., do not have a valid non-immigrant visa that was is valid on June 24, 2020 and who need to apply for an H-1B visa to enter the U.S.

If you are currently in the U.S. on an OPT or cap-gap extension status and your H-1B visa application is approved before October 1, your status will change to an H-1B status on October 1, and you can keep working for the H-1B employer. However, once you leave the U.S., you would need to go and apply for an H-1B visa at the U.S. Consulate abroad. As of now, the U.S. Consulates are not processing non-immigrant visas so even though the new executive order does not apply to you, it may take a while for you to get the visa stamp. Additionally, travelers certain counties (Brazil , China, Iran , Schengen Area countries and the UK ) are still barred from entering the U.S., so you should also keep this in mind when deciding whether to leave the U.S.

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