A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, September 22, 2018

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 24-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.

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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. 

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