FAQs From Students

Student FAQs are being merged with all FAQs under the tab on the main page. Find the most recent ones there.

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Question (20.Jan.2014): I worked in H1B status for more than 6 years and have an approved I-140. I have since been in India for more than one year. If a different company files an H1B petition on my behalf based on the approved I-140, will my 6-year clock be reset?

Answer: No, in the example given, the clock would not be reset for six more years. It is a choice of which rule a person wants to use. If one is out of the United States for a full year, the six-year H1B clock resets. But, to take advantage of that, the H1B case must be filed as being subject to the cap. Alternatively, it is possible to avoid dealing with the H1B cap and use an approved I-140 to return for more H1B time. But, these rules cannot be combined. So, a choice has to be made before returning to the U.S.

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Question (17.Jan.2014): I am authorized for full-time CPT. My regular hours, plus the overtime my employer is requesting from time to time, may exceed 40 hours per week. Is this permitted?

Answer: Full-time CPT is defined as any employment exceeding 20 hours per week. As there is no maximum limit on the number of hours per week to meet this definition, occasional overtime should be permitted.

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Question (10.Jan.2014): I heard that the USCIS does not consider unpaid internships to be employment during the initial OPT period and counts them toward the maximum 90-day unemployment period. I have been working as an intern at a big pharmaceutical company for 3.5 months, and I expect to be hired as a regular, paid employee at the end of my internship in two weeks. Am I in violation of my F-1 status since the period of my unpaid internship exceeds 90 days?

Answer: Several months ago, the USCIS did change from its earlier position with regard to unpaid internships, considering them not to be an acceptable form of employment for OPT purposes. This position was in contradiction to the policy guidance issued by Student and Exchange Visitor Program (SEVP), which lists unpaid internships and volunteering as permissible types of employment during the initial OPT period. However, the USCIS appears to have changed positions once again back to one consistent with the SEVP policy. Specifically, the USCIS reversed itself, at least in several cases that were initially denied based on the determination that an unpaid internship exceeded the maximum unemployment of 90-days and resulted in a violation of F-1 status. Therefore, the current position once again seems to be consistent with the SEVP policy, placing unpaid internships and volunteering on the list of allowable forms of OPT employment. Note, however, that, pursuant to the SEVP policy, any such employment must not be in violation of any labor laws.

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Question (03.Jan.2014): I graduated from my university two years ago with a master’s degree and applied for Optional Practical Training (OPT). The USCIS approved my application and issued me an employment authorization document (EAD). However, instead of starting employment, I decided to enroll in a second master’s program of study from which I graduated three months ago. Before graduation, I applied for OPT again, since I did not use my OPT approval after my first degree. The USCIS denied my application indicating that I am ineligible for a second period of OPT based on the same level of study. I feel this decision is unfair because I never used my first EAD. I would like to file a motion to reopen / reconsider this decision. What is the likelihood that my motion will be successful?

Answer: Unfortunately, even though you did not use your first period of OPT authorization, you are not likely to recover this period of unused OPT based on your second degree. The general rule barring a second period of OPT based on a subsequent program of study on the same level would also apply in a situation in which the initial period of OPT was previously approved but not used. In limited circumstances, it may be possible to withdraw the OPT request prior to the USCIS issuing an EAD. However, once the OPT is approved, there is no mechanism to recover the entire or any of the unused portions of the OPT period.

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Question (27.Dec.2013): My OPT authorization ended one month ago and I have been waiting for an approval of my employer’s H1B petition that it filed on my behalf. Unfortunately, the H1B petition was denied because of the lack of evidence about the employer / employee relationship. I would like to continue to maintain status in the U.S. What should I do to stay in valid F-1 status?

Answer: You appear to be in valid F-1 status until the end of your 60-day grace period after the expiration of your OPT authorization. To maintain your F-1 status in the future, you may transfer your SEVIS record to a new program of study by the end of your grace period. You should resume your study at the next available term not to exceed five months into the future.

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Question (21.Dec.2013): I initially entered the U.S. in F-1 status to enroll in the undergraduate program of study in psychology. My I-20 form was valid for four years, which is the standard length of my academic program. In my second year of study, I decided to change my major to social work. My academic adviser told me that I would need to take several additional classes in order to complete my new degree requirements, which would extend the overall program of study by one semester. What should I do to stay in valid F-1 status after the expiration of my I-20?

Answer: You should report the change in your program to your DSO. The DSO is authorized to extend your program of study in SEVIS for "compelling academic or medical reasons." A change in major is considered to be such a compelling academic reason based upon which the DSO should be able to issue you a new I-20 form indicating your new major and expiration date.

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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.

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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.

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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.

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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.

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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.

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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.

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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."

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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.

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