I timely filed an application for OPT extension based on a STEM degree. Unfortunately, my application was denied because my employer gave me an incorrect E-Verify number. …

… I would like to challenge the denial by filing a motion to reopen or reconsider this decision, but I am very concerned that I will be staying in the U.S. without lawful status now, that my STEM OPT was denied. Can I transfer to a different school or change to a different status while I wait for the decision on my motion to avoid being out of status?

Answer:

If your initial OPT period and a 60-day grace period have already expired, and your STEM OPT extension request was denied with a finding of violation of status, you may not only be out of lawful status but also accruing unlawful presence in the United States. You are correct that a filing of a motion neither puts you in lawful status nor gives you permission to remain in the U.S. However, if the motion is granted and the underlying case (i.e. the STEM OPT application) is reopened, it has a retroactive effect resulting in no break in lawful presence in the U.S.

It is your decision whether you would like to wait in the U.S. for the decision on your motion or leave the U.S. If you decide to change your status or transfer to another program of study (provided you are still in valid F-1 status when you initiate such a request), however, you will forfeit your claim to the STEM extension as you would no longer be eligible for it and your motion will be moot. (14.Feb.2014)

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