OPT Ending, H-1B Still Pending, What Should I do?

Every year around this time, international students who are working in post-graduation optional practical training (OPT) programs would get nervous about their future.  Their OPT status has either ended or is ending soon; they may or may not have an H-1B petition approved or pending; and they may or may not be eligible for STEM OPT extension.  This article will serve as a general guideline for them.  

First, foreign students who completed a U.S. STEM degree should definitely apply for STEM OPT extension as soon as they become eligible.  Although there are proposed regulations to change the STEM OPT program, the 20-month extension is still in effect today.  In order to offer STEM OPT employment, an employer must participate in the federal eVerify program. A formal training plan for the student worker is also required. Applicants will  be entitled to an 180-day automatic extension of their EAD based on a timely filed OPT extension application.  However, the STEM OPT extension must be filed before one's regular OPT status expires.

When a foreign student’s OPT status has ended, she would only have 60 days of grace period to remain in the U.S. unless she has an H-1B petition filed on her behalf. 

Pursuant to cap-gap extension rules, if a foreign student has a pending H-1B petition on or after April 1st and his OPT status expires between April 1st and October 1st, the student’s employment authorization is extended through September 30th or until the H-1B petition has been denied, whichever happens first.  But if the student  is already in his 60-day grace period when his cap-subject H-1B petition was filed, he is only allowed to stay in the U.S. through September 30th but without employment authorization.  

What if one’s H-1B petition is still pending on October 1st?  It is a very likely scenario based on the current adjudication schedule.  Tightened legal standards, frequent issuance of requests for evidence, and suspension of premium processing services mean that many H-1B petitions would still be pending on October 1st.  If so, a student must stop working on October 1st although he may still stay in the U. S. legally until there is a decision on the H-1B petition.  

As a backup plan, a foreign student may also consider leaving the country and return with an H-1B visa after approval.   Or they may also file for a change of status to other visa status such as B-2 visitor status. Extension of their F-1 status is also another possibility.  However these applications require advanced planning. As we always advice clients, immigration planning is extremely important. If one waits for the last minute, there usually is not enough time to do anything meaningful.  For example, the STEM OPT extension cannot be filed during the grace period. 

Filing Date Chart Adopted by USCIS in October 2018 Visa Bulletin

The State Department Visa Bulletin provides two charts of dates - (1) The Final Action Date Chart is to determine when a visa applicant may actually receive a green card.   (2) The Filing Date Chart is to determine when an applicant may submit his/her supporting documents.  The State Department has been using both charts in handling overseas applications. 

For many months, the USCIS has only followed the Final Action Date Chart in determining employment-based visa applicants' eligibility to submit the I-485 adjustment application within the United States.  

USCIS announced recently that all employment-based visa applicants must file their I-485 application based on the Filing Date Chart.  Since the Filing Date Chart has earlier cutoff dates, the change means that more applicants may submit their I-485 application in October.   Hence, employment-based applicants should check their priority dates immediately to see if they are qualified to file their I-485 application in October. 

Strategies Dealing with EB-1 Retrogression

The recent visa bulletin retrogression in the Employment First Preference (EB-1) visa category has disrupted  the plans of many intending immigrants.  Historically the EB-1 visa category is usually current, meaning that an applicant does not need to wait for an available visa number to get a green card.  However, this advantage has reversed recently. For example, in September's Visa Bulletin, there are cutoff dates for all countries in the EB-1 category.  Most countries have retrogressed to 2016 while China and India have gone back to 01/01/2012.  

The EB-1 visa category was created for "priority workers" as a shortcut to obtain the U.S. permanent resident status. EB-1 priority workers include foreigners with extraordinary ability, outstanding professors and researchers, and multinational executives and managers.  

EB-1 visa applicants should adjust their plans accordingly in light of the recent visa retrogression.

The Visa Office has predicted that EB-1 will not likely to return to current status until at least December 2018 or even 2019.  Hence, for those visa applicants who are in the U.S., they must maintain their status while waiting for their priority dates to be current.  Normally, when a visa applicant's priority date is current, he may file the I-140 visa application concurrently with the I-485 application to adjust status.  A person with a pending I-485 application is allowed to remain in the U.S.

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The current immigration policy does not allow filing of the I-485 adjustment application unless there is a current priority date.  (Note: Surprisingly, USCIS has indicated that I-485 applicants may follow the Filing Date Chart in October.)  Hence, an EB-1 visa applicant must seek other avenues to stay in the U.S. during retrogression. For extraordinary ability applicants, the O visa status is a logical choice. For multinational managers, they may apply for the parallel nonimmigrant L-1A visa.  The H-1B temporary work visa is another possibility.  For short term stay, one may also consider the B1/B2 visitor visa.

An applicant should depart the U.S. if there is no viable way to stay.  Staying in the U.S. without legal status could have serious consequences including being banned from returning to the U.S. for a period of time.  There is some legal relief for employment based applicants if their lapse of status is less than 6 months but the best strategy is to avoid any unlawful status altogether.

Even being outside of the U.S. one may continue with the immigrant visa application process.  For example, he may respond to a formal Request for Evidence from USCIS while abroad. After the I-140 visa petition has been approved and when the priority date becomes current, the visa applicant will be able to apply for an immigrant visa from an American Embassy to return to the U.S.

In the newly-released October's Visa Bulletin, the Employment Second Preference (EB-2) is actually back to current for most countries except India and China.  Hence, eligible applicants may also consider filing a petition under the EB-2 category.  For example, an EB-1 extraordinary ability applicant may also file an EB-2 petition with a request for a national interview waiver (NIW).

Timing is another critical issue to consider.  For example, premium processing service is still available to L-1A multinational manager petitions, allowing these applicants to extend their nonimmigrant status quickly.   However, premium processing service has been suspended for most H-1B petitions.  Still there are automatic extension rules that allow certain H-1B workers to continue working in the U.S. once an extension or change of employer petition has been filed.   Similarly, when a foreign  applicant submits a non-frivolousness application to change or extend his nonimmigrant status in stay in the U.S., he is generally allowed to remain in the U.S. until a decision is issued.  The application must be properly filed with all required documents before his current status expires.

Even if an EB-1 visa applicant already has an I-485 application pending, it is still a good idea for him to maintain his nonimmigrant status such as L-1A, H-1B, O, etc.   If the adjustment application is denied for whatever reasons, he would still have an nonimmigrant status to fall back on.  While premium processing is available to most I-140 petitions, it is is not available to the EB-1C multinational managers petitions and the regular processing time now is up to about one year.  Hence, one should carefully plan and time his applications.

I-539 Applications Transferred

On September 2, 2018, Vermont Service Center transferred some I-539 applications for F, M, J or B nonimmigrants to the Potomac Service Center and the Nebraska Service Center. 

he I-539 Application to Extend/Change Nonimmigrant Status functions as described -- it is used for nonimmigrants to extend or change of their visa status. It can also be used for requests for reinstatement of lapsed status.  

USCIS frequently shuffles applications between service centers. The purpose is to lighten the workload on one service center by moving applications to less busy service centers. A similar transfer took place on July 19, 2018 where some I-539 applications for F, M, J, or B nonimmigrants were transferred out of the Vermont Service Center and sent to the California Service Center. Also, on July 26, 2018, the California Service Center transferred some of its I-751 Petition to Remove Conditions on Residence applications to the Texas Service Center. The same transfer took place on July 19, 2018 between the California Service Center and the Vermont Service Center.

These moves are routine procedure by USCIS to regulate workloads.

I-751 Filing Address Change

As of September 10, 2018, I-751 Petition to Remove Conditions on Residence applications are to be sent to a USCIS lockbox facility instead of the California and Vermont Service Centers. Adjudication will be performed by the California, Vermont, Texas, and Nebraska Service Centers.

The I-751 form is for those who received their conditional green card through recent marriage. The application is to request the removal of conditions on their status and receive full permanent residence.

October 2018 Visa Bulletin: EB Categories Bounce Back

A new batch of visa numbers has been released for October - the first month of the fiscal year. As predicted, the Final Action dates for many employment categories have returned to more "normal" status.  Some categories such as EB-2 and EB-3 have returned "current" status.  Family categories also advance moderately.

• All EB-1 categories are still cut off.  EB-1 China and India move forward by 4 1/2 years to 06/01/2011. All other countries advance 10 months to 04/01/2017.  
• EB-2 India and China advance more than 2 years to 03/26/2009 and 04/01/2015 respectively.
• All other EB-2 categories are current!
• EB-3 India and China advance 6 months to 01/01/2009 and 06/01/2015 respectively.
• All other EB-3 categories are current!

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AD: Dates for Final Action (Approval)   FD : Dates for Filing Applications Only

Family		Other Countries	China	India	Mexico	Philippines
F1	AD	06/01/2011	06/01/2011	06/01/2011	08/01/1997	12/22/2006
	FD	03/08/2012	03/08/2012	03/08/2012	10/08/1998	02/15/2008
F2A	AD	08/22/2016	08/22/2016	08/22/2016	08/01/2016	08/22/2016
	FD	12/01/2017	12/01/2017	12/01/2017	12/01/2017	12/01/2017
F2B	AD	11/22/2011	11/22/2011	11/22/2011	05/15/1997	05/15/2007
	FD	03/22/2014	03/22/2014	03/22/2014	06/22/1997	12/15/2007
F3	AD	06/15/2006	06/15/2006	06/15/2006	12/22/1995	06/08/1995
	FD	01/08/2007	01/08/2007	01/08/2007	12/22/1998	06/01/1997
F4	AD	02/15/2005	02/15/2005	05/01/2004	01/22/1998	06/08/1995
	FD	06/01/2005	06/01/2005	01/01/2005	06/22/1998	04/08/1996

1st: Unmarried Sons and Daughters of Citizens (about 23,400 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens (about 23,400 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

   

Employment		Other Countries	China	El Salvador Guatemala Honduras	India	Mexico	Philippines	Vietnam
EB1	AD	04/01/2017	06/01/2016	04/01/2017	06/01/2016	04/01/2017	04/01/2017	04/01/2017
	FD	06/01/2018	10/01/2017	06/01/2018	10/01/2017	06/01/2018	06/01/2018	C
EB2	AD	C	04/01/2015	C	03/26/2009	C	C	C
	FD	C	06/15/2015	C	05/22/2009	C	C	C
EB3	AD	C	06/01/2015	C	01/01/2009	C	06/01/2017	C
	FD	C	08/08/2015	C	10/01/2009	C	07/01/2017	C
Other Workers	AD	C	05/01/2007	C	01/01/2009	C	06/01/2017	C
	FD	C	06/01/2008	C	10/01/2009	C	07/01/2017	C
EB4	AD	C	C	02/15/2016	C	10/22/2016	C	C
	FD	C	C	05/01/2016	C	C	C	C
EB5	AD	C	08/15/2014	C	C	C	C	01/01/2016
	FD	C	10/01/2014	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)    
5th: Employment Creation (Investors)

Notes:  The following two categories (not listed above) have become "unavailable" in October 2018:- Certain Religious Workers for all countries.- 5th Regional Center (I5 and R5)