I have been working on OPT and my EAD expired last month. I timely filed a 17-month OPT STEM extension and the USCIS has just issued a request for evidence (RFE) on it. Meanwhile, my employer filed an H1B petition for me while I still had an unexpired EAD for the initial OPT period. …

… The H1B petition was approved with an I-94 for a start date of October 1st, which is still in the future. Based on the H1B filing, I obtained a new I-20 for cap-gap employment. If I withdraw my STEM extension instead of replying to the RFE, would that present any issues?

Answer

As long as you met all of the conditions for the cap gap employment, including having your H1B petition filed while you were authorized to work pursuant to the initial OPT period requesting the October 1 start date, you should not need the additional authorization based on the pending or approved STEM extension. Therefore, you can withdraw the pending STEM extension without losing your ability to continue employment until your status changes to H1B.

The only reason to keep your STEM extension pending and respond to the substantive issues in the RFE is if you do not intend to work for your H1B employer and would like to move to a different employer in the near future. In that case, you should ask that your H1B employer withdraw the H1B approval to prevent the termination of your SEVIS record due to the change of status from F-1 to H1B on October 1st. (15.May.2015)

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