It is that time of year again when all H-1B applicants can file their H-1B visa. Please note that although you can file on April 1, 2011, the visa start date cannot be any earlier than October 1, 2011.
This may present a problem for some people that have a visa that expires in May 2011, for example, and want to remain in the U.S. until their H-1B visa is approved, etc. The problem is that all applicants in the U.S. need an underlying visa from April 1, 2011 until the end of September. If this is not the case, then USCIS may approve the H-1B visa but deny the change of status request.
The only exception to this is that all student visa holders have protection under the “cap gap” rule, which means that as long as they apply before the date of expiration on the I-20, then USCIS will consider them to be in status while their H-1B is pending. However, the applicant must have been complying with the full terms of their student visa.
The above rules are general rules and employment based visas are extremely complex. If you are applying for an H-1B visa, please consult with an immigration attorney for assistance so that you can remain in legal status here in the U.S.