My initial first-year optional practical training (OPT) authorization ended over two months ago, and I am currently working based on a pending STEM OPT application. …

… My employer is filing an H1B petition this week for the October 1st start date. If my STEM OPT application is denied while my H1B petition is still pending, how will this affect my ability to continue living and working in the U.S. until to October 1st?

Answer

A properly filed and pending STEM OPT application extends the student’s F-1 status and employment authorization for 180 days since the expiration of the first-year OPT EAD. This means that, if your STEM OPT application met basic filing requirements (i.e. was not frivolous), you are now in valid F-1 status with employment authorization. Therefore, as long as you had valid F-1 status with employment authorization when your H1B petition was filed, even if the STEM OPT application is later denied, you should be able to benefit from the cap-gap provision that will allow you to live and work in the U.S. until your status changes to H1B or the petition is withdrawn or denied. If USCIS makes a finding of an F-1 status violation when it denies your STEM OPT extension, you will need to leave the U.S. and wait for the decision on your H1B petition from abroad. (31.Mar.2017)

Questions frequently reach us from students on a variety of matters. This is a sample question, answered by an attorney in our firm. More information can be found in the student section of MurthyDotCom.

Access more FAQs here.

Copyright © 2017, MURTHY LAW FIRM. All Rights Reserved