FAQs From Students
Question (13.Dec.2013): I initially came to the U.S. in F-1 status to work on my master’s degree in computer science. I successfully completed my study and was authorized for Optional Practical Training (OPT) upon graduation. While I was working on OPT as a computer analyst, my employer filed an H1B petition on my behalf. Unfortunately, my employer’s petition was rejected in the lottery as there were more petitions filed during the initial filing period than the number of visas available. As my OPT was ending, I decided to transfer to a new program of study in business administration with a concentration in information technology (IT). I obtained authorization for Curricular Practical Training (CPT) and continued working for my employer in the same position of computer analyst. My employer will try to file another H1B petition for the start date in the next fiscal year. Will my employment and study history present any problems for me to change status to H1B?
Answer: Based on the information you provided, you may be in violation of your F-1 status because your CPT does not appear to be related to your new program of study in business administration. In similar cases, USCIS has rejected an argument that a concentration in IT would make CPT authorization proper for an IT-related job if the major program of study is in business or other unrelated field. This means that, even if the H1B petition is approved, the change-of-status request from F-1 to H1B may be denied based on a status violation finding.
Question (06.Dec.2013): I am currently in F-1 status with a pending application to change status to H-4 (form I-539). I have recently moved to a new address. Do I have an obligation to update my address? And, if yes, whom should I notify?
Answer: Generally, any non-U.S. citizen must notify USCIS by filing the AR-11 form within 10 days of the move. However, as a student in F-1 status, you only need to provide your new address to your DSO within 10 days of the move by following a specific procedure established by your school. Your DSO will have 21 days to provide this information to USCIS which will satisfy the AR-11 filing requirement.
Separately, because you have a pending I-539, you should change your address with regard to your application by following the change-of-address instructions on the USCIS WebSite.
Question (22.Nov.2013): My school operates on a quarter-based schedule consisting of summer, fall, winter, and spring academic quarters. I started my study this fall and would like to take next summer off to travel around the U.S. Am I permitted to take a vacation?
Answer: If a school operates on a trimester or quarter calendar, a student in F-1 status can take a vacation once a year during any trimester or quarter, after s/he has completed at least one full academic year. Therefore, you need to wait until you have completed your first year of study before you can take an annual vacation.
Question (15.Nov.2013): I graduated from an accredited, private, for-profit university with a master's degree in electrical engineering. I applied for and obtained OPT authorization. My employer filed my H1B petition under the masters' quota, based on my degree. However, the USCIS issued a notice of intent to deny because my degree did not qualify for an exemption from the annual limitation on the number of H1B visas (masters' cap) since my degree was not from a non-profit or public school. Is the USCIS correct? What should my employer and/or I do?
Answer: Under the law, to qualify for the masters’ cap, the degree should be awarded by a public or non-profit U.S. accredited institution of higher education. Many employers overlook this requirement when they request that the petition be exempt from the regular H1B cap based on the master's degree from a private school. One may argue that the USCIS has discretion to treat this petition as if it were filed under the regular cap, but the USCIS is not likely to accept this argument in all cases. If the H1B petition is denied for this reason and you still have valid OPT authorization, it should not affect your ability to continue employment. Your employer then should refile your petition next year under the regular cap, if you have at least the equivalent of a U.S. bachelor's degree from an accredited school in the relevant field.
Question (11.Nov.2013): After an initial year on OPT, I applied for the OPT STEM extension. I have just received a denial decision from the USCIS, stating that I exceeded the maximum 90-day unemployment limitation because I worked for several months as an unpaid intern. I was very surprised to receive this decision because my DSO assured me that unpaid internship is one of the permissible types of OPT employment. Is USCIS right in denying my request?
Answer: The situation you describe appears to be a recent adjudication trend, which is a sudden change in the position the USCIS previously followed. Unfortunately, despite clear guidance provided by SEVP that lists unpaid internship and volunteer work as permissible OPT employment, the USCIS has recently stated that such unpaid employment is not permissible for OPT purposes. This is a direct contradiction of its previous position, where USCIS considered such employment to be satisfying OPT requirements. You should discuss possible courses of action with a knowledgeable immigration attorney to evaluate your chances. Possible courses of action may include filing a motion to reconsider / reopen, leaving the United States, applying for reinstatement based on admission to a new program, filing a federal lawsuit, etc.
Question (01.Nov.2013): My former employer filed an H1B petition for me for the start date of October 1st, while I was still on OPT. My OPT was approved until December this year. I moved to a new employer and told my former employer that I no longer wished to be sponsored for H1B. Therefore, I thought that my H1B petition would be withdrawn. In late October, however, I found out that the USCIS approved my change-of-status petition and my SEVIS record was closed. I would like to continue using my OPT and maintain my F-1 status. How can I do that?
Answer: Once the H1B petition and the request for change of status to H1B were approved, it terminated your F-1 status and OPT authorization. In order to return to F-1 status, you have to apply for reinstatement with the USCIS or travel with a new I-20 issued for a new program of study. Unfortunately, you are no longer eligible to continue your OPT employment, because you would have to enroll in a new program of study to apply for reinstatement or reenter the U.S. in F-1 status.
Question (25.Oct.2013): I have recently applied for a STEM extension of my OPT. My initial period of 12-months on OPT has just ended, but I am still working on my thesis, which I need to complete before I am able to receive my diploma. I understand that I was able to qualify for the initial OPT period because I had completed all of my program requirements except for the thesis. Will I also qualify for the STEM extension if my thesis requirement has not been met yet?
Answer: Yes, you should still qualify for the STEM extension even if you have not completed your thesis yet. The USCIS recently indicated in the Interim Policy Guidance on 17-Month STEM OPT Extensions, "F-1 students who are currently in a period of post-completion OPT while completing his or her thesis and has completed all other course requirements for his or her STEM degree, is eligible to apply for a 17- month STEM extension, notwithstanding the fact that the student has not yet completed the thesis requirement or equivalent for his or her STEM degree."
Question (18.Oct.2013): I applied for OPT before the completion of my study so that I can start working immediately after my graduation. I have just learned that I have not completed all of my graduation requirements and will not be able to graduate until the end of the next semester. I immediately checked the status of my OPT online, and it says that my OPT has just been approved. Is my OPT approval still valid? What should I do?
Answer: You should make sure that your DSO extends your program in SEVIS. Once the OPT is approved, it is almost impossible to request that the approval be revoked so that a student can apply again in the future. You should use your OPT employment authorization for work while you continue to attend school, but you are not allowed to work more than 20 hours a week. Once you complete all of your program requirements, you can start working full time. Please note that you will be subject to the 90-day limit on unemployment while on OPT even while still attending school.
Question (11.Oct.2013): I have completed all of my academic program requirements except for a 3-credit class which is offered as an online course. My DSO said that I could apply for and obtain authorization to drop below the full course load in the last semester if I do not need to be enrolled full time in order to graduate. I plan to move in with my sister who lives in a different state during my last semester and take my last class requirement online to save money. Am I permitted to do so to maintain my F-1 student status?
Answer: It is correct that you can drop below the full course load in your last semester with your DSO's authorization. However, you are not permitted to complete your remaining course requirements online only. Physical attendance is required during each term of your enrollment.
Question (01.Oct.2013): I received OPT authorization three months ago, after graduating with a master's degree in accounting. I started looking for a job right away, but I was seven months pregnant and, due to complications, had to be on bed rest for a few weeks. After that I had my baby and am only now starting to contact prospective employers again. Will the 90-day unemployment limitation apply to me even if failure to be employed since the start date of my OPT was not through any fault of my own?
Answer: Unfortunately, you are likely to be subject to the 90-day limitation on unemployment on OPT even though you were physically unable to work. SEVP has confirmed in its recent communication with the Murthy Law Firm that all students have to abide by the SEVP OPT Policy Guidance. Regardless of the circumstances, no student will be allowed to exceed the allotted time for unemployment.
Question (26.Sep.2013): I traveled back to my country for a summer break, but, unfortunately, I forgot to have my I-20 signed by my DSO before I left. On the way back, I was issued a Form I-515A by Customs and Border Protection (CBP) with instructions to mail it to Students and Exchange Visitors Program (SEVP) with the required documents within 30 days. I forgot to do it and it is now 32nd day since my entry. Is it too late to submit my I-515A now?
Answer: Unfortunately, SEVP automatically terminates all SEVIS records of students who do not comply with the I-515A mailing requirements within 30 days from the date of entry. You will either have to leave the U.S. or apply for reinstatement with USCIS.
Question (20.Sep.2013): I was issued an F-1 visa on July 1st for the initial attendance with the start date on September 1st. Prior to my departure for the United States, my father became ill and I needed to help my mother for a few months with our home business. I asked that my school delay my admission to the next semester that starts next year on January 20th. Do I need to obtain a new visa?
Answer: Most likely, you will need a new visa even though your visa was issued for attendance at the same school. This is because an F-1 visa cannot be issued more than 120 days before the start of the program and it will have been more than 120 days between the issuance of your visa on July 1st and the start of the program on January 20th next year.
Question (16.Sep.2013): I have started my third year working towards a master’s degree in software engineering. I have just been diagnosed with a serious illness and my health has been steadily deteriorating, which prevents me from doing well in school. My parents really want me to come back home so that they can help me get healthy and strong again. I think that, if I stay with my parents in my home country for a few months, I could come back to continue my study next year. What do I need to do to assure that I comply with immigration regulations and will be able to return next year?
Answer: First, you need to discuss your circumstances with your DSO and obtain authorization for early withdrawal from school. With the DSO's authorization, you can stay in the United States up to 15 more days from the withdrawal date to get ready for departure.
Please note that, if you plan on being absent for five months or more from the U.S., you will need to obtain a new F-1 visa and return as an initial student. Absences of less than five months do not require a new visa.
Question (09.Sep.2013): I will graduate in two months with a master’s degree. I applied for OPT a week ago and it is now pending. I recently learned that my grandmother became very ill and I would really like to visit her before I start OPT employment. Can I leave the United States after I graduate? Will I be able to come back to start my employment?
Answer: Generally, you should be able to reenter the United States to start your OPT. However, you need to wait until your OPT is approved and an employment authorization card (EAD) is issued before you reenter the U.S. Because the USCIS can only send your EAD to your U.S. address , you should make sure that you designate someone to receive the EAD on your behalf and have him/her send it to you to your home country so that you can reenter the U.S. with it. If your OPT application is approved before your departure from the U.S., in order to reenter, you will need a letter of employment, as well as a valid EAD, an I-20 signed for travel by your DSO, and a valid passport and visa. Be careful not to exceed the maximum limit on unemployment, which you will be accruing during your travel outside of the United States.
SEVP advises that traveling during this time should be taken with caution. In the past, SEVP changed its guidance on the type of travel allowed while on OPT, which may change again in the future. For example, SEVP previously stated that departure after OPT approval would invalidate it, but now that position has changed, allowing such travel. Therefore, check the latest guidance issued by SEVP to determine whether you will be permitted to reenter the U.S. before the start of your OPT employment.
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.