OPT FAQs

F-1 to H-1B lottery - How to transfer and change jobs from employer A to employer B?

Authored on: Wed, 03/24/2021 - 08:21

Question

1. I am a F-1 student graduating in May 2021. An employer "X" wants to e-register me for the H1B lottery and I am hoping for a better offer from employer "Y". Suppose I got selected in the H1B lottery filed by "X". Can I start working for employer "Y"? What are my options to work for employer "Y"?

2. Can employer "Y" file my H1B petition even though I was registered in the lottery by "X"?

3. Can I ask "X" to not file an H1B petition after winning the lottery and use F1-opt as work authorization?

4. I am also applying for F1-OPT. Can I use my F1-opt to work till September for "Y" and then use H1B in October to work for "Y" while it was filed by employer "X"? I believe "X" would send an H1B petition with change of status.

 

Answer

Video URL

Student on OPT during Covid 19

Authored on: Sun, 04/19/2020 - 01:39

Question

I graduated from UCLA in December 2019 and my OPT started on February 10th. I was supposed to start working on March 30 in Los Angeles and I was scheduled to travel back to US from India on 28th March. But due to the travel restrictions, my flight got cancelled and I am unable to travel back. When my employer found out about this, they pushed my start date ahead to end of April because I am not physically present in the US (they mentioned immigration laws don’t allow them to let someone start work overseas). I am now scheduled to travel at the end of April to be able to start work else I will run out of my 90 non working days leading to expiry of my visa.

Answer

Watch the Video on this FAQ: Student on OPT during Covid 19

Video Transcript:


Please check the websites ICE (SEVP) , USCIS and NAFSA for frequently asked questions related to your issue. Also if they have a foreign office or an office in your country you can work for them. 

FAQ in detail...



Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

CPT, OPT, Unlawful Presence

Authored on: Thu, 03/28/2019 - 06:09

Question

As I have used my CPT for more than 1 year at the same master level and already completed OPT for the 1st master and currently working on CPT for almost 2 years. As per Aug 8th, 2018 Memorandum Am I violating the rules and will start counting Unlawful presence from FEB 5th 2019? Or Unlawful Presence should be count from 6 months from FEB 5th 2019 which is AUG 5th 2019? If this is true then what are my options here?

Answer

Watch the Video on this FAQ: CPT, OPT, Unlawful presence

Video Transcript

What I tell my clients is if you have already done it and you are okay with a three year bar potentiality with it again another potentiality for 212 (d) (3) waiver, which should be given in cases like this where they let you take a nonimmigrant visa even though you have a three year bar. More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.



The New Restriction on 12 Months of CPT OPT Combined – – Consequences of H-1B Denial on OPT

Authored on: Tue, 12/04/2018 - 03:18

Question

I am currently on F1 visa and working on CPT. My H1 petition was picked in the lottery this year and status changed to RFE 2 weeks ago. I wanted to know if August 9 unlawful presence rule applies in my case i.e; if I get a response for RFE after Feb 4 2019, that completes 180 days.

Answer

Watch the Video on this FAQ:

The new restriction on 12 months of CPT OPT combined – –

consequences of H-1B denial on OPT

Video Transcript

In my view you are still on OPT and to activate your H-1 you have to either refile for change of status or go outside the USA for visa stamping. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Starting Business While on Student Visa

Authored on: Mon, 11/26/2018 - 06:27

Question

I am from India, and I am currently doing my masters in the U.S. My goal is to build my startup as I m doing my masters. Therefore, before coming to the U.S, I have incorporated a C Corp in Delaware with me and my brother as the owners. I don't want to violate my F1 status, therefore, even though I have incorporated the C Corp, We are not actively doing any work since I am not sure working on my startup in University will violate my status. I have tried getting in touch with International student services but I have not gotten a clear response on how I can run my startup as an international student while being on F1.

Answer

Watch the Video on this FAQ: Starting business while on student visa

Video Transcript

Doing a business while you are still on a F-1 status is illegal unless you get OPT. If you get OPT, the government has set a time or two as long as you are working in your own field. So if you are a software developer or you have a degree in computer science and you start a company where your primary role is software development or something akin to it you are allowed to do that as long as you have your OPT. You cannot do that in STEM OPT extension, but you can do it for the one - year OPT.  More...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Status of Off-site Placed STEM OPT Extension Students

Authored on: Thu, 05/31/2018 - 07:21

Question

USCIS now interprets the 24-month STEM OPT extension rule from 2016 to require a STEM OPT worker to be placed only at a worksite of the employer. In other words, the USCIS now says that any offsite placement, including at a third-party worksite, is prohibited. Will this affect the H1B petitions filed by employers for such opt students, where they are working at an end client location (not employer location) and the H1B petition was filed with end client details.

Answer

Watch the Video for this FAQ: Status of off-site placed STEM OPT extension students

Video Transcript

First of all to say that USCIS has changed its regulations and they do not allow off-site placements of STEM OPT extensions students is incorrect, because USCIS has said this from a very long time that they are not going to allow these placements. If you are in a situation, what can happen is you could be considered to be out of status for no fault of your own. So if you file an H-1B and if the government says well we think you're out of status hopefully that's all they can do, they can make you go outside the USA for a visa stamping. More...

 
 
 
Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-1B and Green Card Transfer From a Non-Profit Organization to For-Profit

Authored on: Thu, 05/03/2018 - 13:09

Question

I am currently working for a Non-profit org on a cap-exempt H-1B. and my company initiated my GC processing. Below are the few questions:<br>
1. Is the GC processing any different thru a non-profit from a for-profit organization? meaning, is it any advantageous to process my GC thru a non-profit?<br>
2. Can my I-140 from a non-profit be transferred to a for-profit org, if I was able to move to a for-profit org?<br>
3. What are the possible ways that I could move to work for a for -profit organizations? From your previous calls and thru my research I found out below few ways that I could to that. Please give your inputs<br>

a. Finding a profit employer to file my cap-subject H1 (Can I start working for my new employer as soon as my H1b is picked in the lottery or approved, instead of waiting till Oct 1st?)<br>

b. If a new employer sponsor my cap-subject H1 and if I dont move to the new employer, will my current cap-exempt H1 be still active and should I have to go under the cap next time I file a Cap-subject H1<br>

c.applying for concurrent H1b<br>

d. Moving on to H4EAD and filing a H1b next April<br>

e.Joining a Masters CPT college and filing a Cap-subject H-1B next year

Answer

Watch the Video on this FAQ: H-1B and green card transfer from a non-profit organization to for-profit

Video Transcript

1. The answer is No. There is no advantage in going through for-profit or non-profit that's just irrelevant.

2. No, non-profit or for-profit does not matter you cannot transfer I-140s, you can transfer priority dates unless your 1-140 is based upon a National Interest Waiver or an EB-1A.  Your green card can be transferred once your I-140 is approved and I-485 has been pending 180 days, then it doesn't matter what the nature of the organisation is.

3. a.  I don't think there is any specific law on this issue. Technically, you can start working for them on receipt, but obviously you will only get a receipt if your case is picked up for the lottery. So if you have been maintaining H-1B status I believe you can start working for a cap subject employer as soon as your H-1 is picked up.

     b.  Absolutely. My guess would be if your H-1B cap subject H-1B is approved and it is not revoked till October 1st, I don't think you will be subject to a cap to work for a for-profit in the future. It shouldn't be revoked before October 1st and you should receive your change of employer. So in other words, you should get a new I-94 with the case because USCIS has been taking this position that just getting an H-1B approval does not put you over the top where you are safe from cap quota issues. They say unless you receive a change of status or go get a visa stamping till that time you are not exempt from the quota so you must also receive an I-94 which is a transfer of employer, but you can still continue working with the old employer.

    c.  Another way is applying for concurrent H-1B although it is a strange provision in the law where if you have a quota exempt H-1B as long as you maintain that without worrying about the quota you can also work on a concurrent H-1B for a quota employer.

    d. Moving to H-4 EAD is not a good idea because in June they are going to announce the revocation of the H-4 EAD regulations according to the court.

    e. Joining a Master's CPT and filing a cap yes, that's definitely an option.   

More....

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

STEM OPT Extension for Consulting or Staffing companies

Authored on: Tue, 05/31/2016 - 09:00

Question

Can I apply for STEM OPT, if I work for a E-Verified staffing agency (similar to Aerotek, Kelly services) on contract basis that is related to my STEM field of education at a client location ?. (I along with staffing agency will fill out I983 form) <br>

I read online that USCIS has regulated "Certain Types of Employment" for STEM OPT in this new rule. So am worried that working for a staffing company at a client company location is therefore invalid :/ ((If so, I think then all the staffing companies would suffer as well))<br>

I have attached hereby the snippet from Federal Register:<br>

""""""There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03)."""""
<br>
It would be really helpful if you could explain what the above paragraph means.

Answer

Watch Video: STEM OPT extension for consulting or staffing companies

Video Transcript: Basically what the government is saying is that if you have staffing arrangement or a consulting arrangement and you are not directly supervising the employee who is on OPT STEM extension on the site where they are working then you should not be filing for their STEM OPT extension. So far this is what we know of the USCIS comments. I have not heard anything different from USCIS so far. 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status

Authored on: Wed, 12/09/2015 - 06:12

Question

1) My wife is currently on H-1B. I am also on H-1B with approved I-140. My wife's employer is willing to Start GC process for her. I understand that GC is for future employment.<br>

My wife is willing to Move to H-4 EAD. Say my wife's employer initiated her GC process when she is on H-1. Once the perm is filed by wife's employer, will she be able to convert from H-1 to H-4 EAD. Does this has any affect on her ongoing GC process. Is it safe for some one to changes status from H-4 to H-1 and H-1 to H-4 in between PERM and I-140 process.<br>

2) My brother is on F-1 in OPT status. Can my brother's employer start GC process for him while he is on OPT. I have some knowledge of the complications involved in Starting GC process on F-1. The main reason behind this question is to reserve a spot for GC process. That way my brother can get a earliest priority date, his employer would start GC process 2 years down the road when he is on H-1B.
<br>
What is the safe route for some one like my brother to get a earliest priority. Do they have to wait till H-1B to get in to GC process Queue

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=65 

FAQ Transcript: 

This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

If PERM is filed, can she convert H-1to H-4?

She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

Reentry for F-1 Nonimmigrants Traveling Outside the United States

Authored on: Thu, 02/27/2014 - 05:20

Question

What are the basic requirements for an F-1 to reenter the United States after traveling abroad on pleasure or personal business?

Answer

This section of the FAQ applies to continuing F-1 students who travel outside the United States for five months or less.

Students should consult their Designated School Official (DSO) prior to traveling. Your DSO generally works in the International Student Office. You must have a current SEVIS Form I-20 endorsed for travel and your DSO needs to be able to verify that your SEVIS record is accurate and up-to-date.

1. What are the basic requirements for an F-1 to reenter the United States after traveling abroad on pleasure or personal business?

  • A Form I-20, endorsed for travel and signed by your DSO
  • You have been out of the United States for less than five months
  • A current passport valid for at least six months after the date of your reentry or, if you are from one of the countries listed below, a passport that is current through the date of entry
  • A valid, current visa or you traveled to contiguous country or adjacent island for less than thirty days
  • Financial information showing proof of necessary funds to cover tuition and living expenses

If you are from a visa exempt country, you do not need a visa to reenter the United States from the western hemisphere, but make sure that you present your I-20 to be admitted as an F-1 student and not a visitor.

2. What if my F-1 student visa has expired?

You can stay in the United States on an expired F-1 visa as long as you maintain your student status. However, if you are returning home or traveling to a country where automatic revalidation does not apply, you must have a valid visa to return to the United States.

Ensure that you have all the documentation you need for your visa application and allow sufficient time for processing a new visa. The documentation you may need for a new visa includes, but is not limited to the following:

  • A Form I-20, endorsed for travel and signed by your DSO (see your DSO before you travel)
  • Original evidence showing proof of necessary funds to cover tuition and living expenses
  • Evidence showing your intention to return to your home country upon program completion, including evidence of compelling social and economic ties to your home country
  • If you have applied for or had optional practical training (OPT) approved, bring a copy of your Form I-20 endorsed for OPT and your Employment Authorization Document (EAD), if you have one

The Department of State recommends that you apply for a visa in your home country. For more information about visa applications visit the Department of State (DoS) website at http://travel.state.gov/.

You can apply in a third country for a visa, but you will not be able to return to the United States until DoS issues your visa. In some cases, this could take several weeks if DoS requires a background check. If DoS denies your visa, you will not be able to return to the United States. Be sure to check the DoS website for specific information pertaining to each embassy or consulate.

 

If you have an expired visa and a terminated record, we strongly advise that you do not travel outside the United States until your SEVIS record shows that you are in active status. If you do travel, you may not be able to renew your visa or return to the United States.

3. As a continuing student, will I need to pay the I-901 SEVIS fee if I travel outside the United States?

No. See the I-901 FAQ for detailed information on the I-901 SEVIS fee.

4. I wish to travel to Canada, Mexico, or one of the islands (other than Cuba) adjacent to the United States. Can I return if my visa is expired?

Yes, in most cases. You can usually revalidate an expired visa automatically when returning from a visit of less than thirty days to Canada, Mexico, or one of the islands adjacent to the United States (other than Cuba) provided that you have a valid Form I-20 and a valid unexpired Form I-94. This process is known as automatic visa revalidation.

However, if you meet any one of following criteria, you will not be able to automatically revalidate your visa.

  • You applied for a new visa and DoS has not yet issued it to you
  • You applied for a new visa and DoS denied the application
  • You have a terminated SEVIS record indicating that you are out of status
  • You have been out the United States for more than thirty days

5. Which islands are defined as “adjacent islands”?

The adjacent islands are:

  • Saint Pierre
  • Miquelon
  • Cuba
  • The Dominican Republic
  • Haiti
  • Bermuda
  • The Bahamas
  • Barbados
  • Jamaica
  • The Windward and Leeward Islands
  • Trinidad
  • Martinique
  • Other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea

( INA, Section 101(b)(5))

6. How do I know if I have a terminated record in SEVIS?

Your DSO can tell you your SEVIS record status and give you appropriate travel related advice.

7. I want to travel outside the United States, but my SEVIS record is in terminated status. Can I return if I travel?

If you need to travel on a terminated record, you must first visit your DSO. If your school has requested a data fix, the DSO will put your help desk ticket number on your Form I-20 and report your pending travel to SEVP.

There is no guarantee that Customs and Border Protection (CBP) will readmit you to the United States if you travel on a terminated record. In most cases, CBP inspectors will allow you to reenter the United States if you are otherwise admissible and your DSO has properly annotated your Form I-20. It is likely, however, that the CBP officer at the port of entry will send you to secondary inspection while they determine whether you are eligible to return to the United States.

8. Can I travel outside the United States if I have a Form I-485 adjustment of status application pending?

No, not without advance permission. If you depart the United States with a pending Form I-485, you have abandoned your application unless you receive permission in advance from USCIS to return to the United States. We call this Advance Parole. Additionally, CBP may also consider you ineligible to return to the United States as an F-1 student because your application to change status to that of a permanent resident is evidence of intent to immigrate, which is inconsistent with nonimmigrant student status.

9. Can I reestablish F-1 student status by obtaining a new initial Form I-20 and reentering the United States?

Yes. However, you will be considered an initial student for SEVIS purposes. You will have to pay the I-901 SEVIS fee again and you will lose any time that you have accrued toward qualification for training (OPT) or employment.

You must have the new Form I-20 showing that you are entering on a new SEVIS ID number.

You should be aware that the CBP inspecting officer will determine whether or not to admit you to the United States with the new Form I-20. If you did not comply with the terms of your status during a prior stay in the United States, the CBP officer may decide that you are not eligible to reenter.

10. Can I reenter during the 60-day period after finishing my program or OPT?

No. The 60-day “grace” period is only to prepare to leave the country.

11. Can I reenter if my request for OPT is pending?

Yes, but traveling during this time should be undertaken with caution. USCIS may send you a request for evidence while you are away, however, so you would want to make sure you have provided a correct U.S. address both to your DSO and on the application and would be able to send in requested documents. Also, if USCIS approves your OPT application, you will be expected to have your EAD in hand to re-enter the United States. Like a request for further information, USCIS can only send the EAD to your U.S. address.

12. Can I reenter if I left while on OPT?

If USCIS has approved your OPT you will be expected to have your EAD in hand to re-enter the United States, in addition to your Form I-20, valid passport and visa, and a letter of employment if you have one. If you exceed the limits on unemployment while outside the United States, you will not be eligible to re-enter the United States in F-1 status.

13. Are there any other requirements for travel outside the United States?

The questions above outline the general requirements for reentry for F-1 students. However, because individual circumstances vary, consult your DSO, embassy, or legal advisor before traveling. Planning for your trip early ensures that you have enough time to get all of your travel documents in order.

If you are not returning to your home country, you should check the requirements of the country you are visiting. Some countries require a visa. You may also need a transit visa for countries where you are making a connecting flight. Be sure to check before you travel. Most countries have immigration websites that provide visa information. If you have additional questions, please contact SEVP atSEVP@ice.dhs.gov or call us at 703-603-3400.

For more information please visit this link: http://www.ice.gov/sevis/travel/faq_f2.htm



 


 


OPT to H-1B

Authored on: Mon, 10/07/2013 - 06:40

Question

I am currently on my Post-completion OPT. I was recently hired as an IT by a company which agreed to sponsor my H-1B. My OPT expires on January 2013. I've done my Associate Degree in Computer Science. Also, I have BS in Computer Science but from foreign country. Seven year experience in IT.I had my BS evaluated recently. It is equivalent to US Bachelors Degree in Computer Science Computer Technology.

Q1: I will have a gap of 3 months before April 1. How to maintain my status?

Q2: I am under STEM not with my US AAS but with my foreign BS degree. Can I extend my OPT with my evaluated diploma?

Answer

A1. You can consider going back to school or B-1/B-2 status. There is information on our blog on B-1/B-2 to maintain status.


A2. STEM OPT extension is only for US bachelor's or above. Foreign degree does not help in that.

O-1B Extension and Authorized Period of Stay

Authored on: Tue, 03/05/2013 - 01:17

Question

I have been in the US for six years. First O-1B expired on Feb15, sent in application for the 2nd O-1B already in December. The itinerary wasn't sufficient, response due by April 26th, ready to send in the completed itinerary plus additional letters of intended employment. My household is in New York. I am still here. Am I illegal now? Is there a grace period?

Answer

As long as you had filed your extension application before expiration of the current status, you are not illegal as long as the case is pending. You are in authorized period of stay.

OPT - H4 - H1

Authored on: Mon, 04/18/2011 - 15:48

Question

I am currently on OPT, expiring on 23 May 11. I am currently working but my current employer is not willing to file for my visa and I am unable to find an employer who can file for H1B. I have following questions:
1) If I am not able to find a company-how much time ahead of my visa expiration I will have to file for H4?
2) How difficult it is for an employer file for H1 from H1 and what is the process?
3) If I have to travel out of country before the OPT expiration-do I need to have another visa approved to re enter before my OPT expiration?

Answer

1. Your H-4 application must reach USCIS before expiration of your OPT (although it could be argued that you have an extra 60 days, but I stay away from having to argue).
2. No different than filing a new H-1.
3. You could have a difficult time entering if cutting too close the end, although, legally you are entitled to it as long as you have a job in your field that you have been performing on your OPT.