See this link: https://studyinthestates.dhs.gov/students/h-1b-status-and-the-cap-gap-e…

U.S. Department of Homeland Security established regulations that automatically extend F-1 status and, if applicable, post-completion OPT employment authorization from April 1 to Sept. 30 for eligible F-1 students. We call this the cap gap extension. The cap refers to the limit on the number of individuals who can receive H-1B status every fiscal year. The gap is the period between the end of an individual’s F-1 status and the beginning of the individual’s H-1B status. The cap extension allows for some F-1 students to extend their F-1 status and/or authorized period of post-completion OPT until they transition to the H-1B status on Oct.1.

Maintaining F-1 status

Q1. Can a student under Optional Practical Training (OPT) travel out of the country for a few days (less than five days) without notifying the designated school official (DSO) or employer or do they need permission to travel?

A1. No, students should consult their DSO prior to travelling. The student must have a current Student and Exchange Visitor Information System’s (SEVIS) Form I-20, Certificate of Eligibility for Nonimmigrant Student Status endorsed for travel and their DSO needs to be able to verify that the student’s SEVIS record is accurate and up to date under Title 8 of the Code of Federal Regulations (8 CFR) section 214.2(f)(13). In addition to a Form I-20, endorsed for travel and signed by their DSO, other basic requirements for re-entry include:

•The student has been out of the United States for less than five months;

•A current passport valid for at least six months after the date of the student’s reentry or, if
they are from certain countries, a passport that is current through the date of entry;

•A valid, current visa or the student travelled to a contiguous country or adjacent island for
less than thirty days; and

•Financial information showing proof of necessary funds to cover tuition and/or living
expenses.

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Reinstatement

Q2. Is there a plan for USCIS to communicate updates about reinstatement applications from Form I-539, Application to Extend/Change Nonimmigrant Status to F-1 into SEVIS? Currently, DSOs cannot see any updates on pending applications.

A2. Officers adjudicating reinstatement cases update SEVIS in the remarks section of SEVIS to notify DSOs if a request for evidence (RFE) has been sent or if the case has been denied. If the case is approved, an approval notice for reinstatement is provided to the DSO via SEVIS upon approval of the case in SEVIS.

Q3. Can an F-1 student who files for reinstatement through USCIS and subsequently graduates while the application is still pending continue to remain in the U.S. indefinitely without pursuing any additional educational objective while their application is pending?

A3. An F-1 student is considered to be maintaining status if he or she is making normal progress toward completing a course of study. An F-1 student who has completed a course of study and any authorized practical training following completion of studies will be allowed an additional 60-day period to prepare to depart the United States or to transfer in accordance with the regulations.

Q4. What actions can the DSO take at that point and what deadlines must be met?

A4. DSOs must update a student’s Program End Date to reflect graduation from or successful completion of the program within 21 days of the change.

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OPT

Q5. When a foreign national in F-1 status applies for adjustment of status, is their OPT employment authorization document (EAD) or science, technology, engineering, and mathematics (STEM) OPT EAD invalidated? If they hold an OPT EAD, can they file a STEM OPT EAD extension while their adjustment of status application is pending?

A5. There are no prohibitions to applying and qualifying for multiple EADs under different categories.

An F-1 student does not violate the terms of his or her nonimmigrant status, including any employment authorization issued to engage in OPT, merely by filing an application to adjust status. The F-1 nonimmigrant must continue to comply with all requirements for maintaining F-1 status in order to remain eligible for OPT and STEM OPT.

To qualify for STEM OPT, the F-1 nonimmigrant must:

•Have been granted OPT and currently be in a valid period of post-completion OPT;

•Have earned a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education-recognized accrediting agency and is certified by at the time he or she submits the STEM OPT extension application.

Q6. What are the current processing times for F-1 OPT EADs?

A6. Eighty percent of cases are completed within 1.5 months. You can see processing times on USCIS’ Check Case Processing Times page.

Q7. Does a student with one semester on H-4 and a subsequent semester on F-1 have two semesters required for post-completion OPT? Or must a student have two semesters on F-1 status to qualify for post-completion OPT?

A7. Students are required to be registered full-time in a degree program for at least one academic year in valid F-1 status.

Q8. Students are reporting that when filing for STEM OPT, their Form I-765 reflects their current address but the receipt notice doesn’t update and reflects their old address used when they filed for OPT. Is this a glitch? How can this be rectified?

A8. The system is designed to capture the mailing address provided on the Form I-765 unless an update is provided following the receipt of the application. If a card is not received after 90 days of approval, you can submit an e-request for non-delivery of card.

........................................................................................................

Form I-765, Application for Employment Authorization

Q9. Is there a way to require that the DSO recommendation is included before allowing applicants to file Form I-765 online?

A9. USCIS follows the same intake procedures for paper and online filings. In both procedures, USCIS will reject filings for lack of fee, using an outdated form, lack of signature, or if the form is not filled out completely. USCIS does not reject a Form I-765, Application for Employment Authorization for failure to submit required evidence. However, an applicant must follow all form instructions and regulations when completing an online application. The applicant must upload a copy of Form I-20 endorsed by the DSO.
If you filed Form I-765 without originally uploading Form I-20, you can upload Form I-20 as unsolicited evidence under the “Documents Tab” in your online account up to the point of adjudication. For the (c)(3)(B) eligibility category, your DSO must have entered the recommendation for OPT into the SEVIS record within 30 days of you submitting Form I-765. 
For the (c)(3)(C) eligibility category, the Form I-20 must have been endorsed by the DSO within
60 days of submitting Form I-765.

Q10. Students have been able to print or download a draft Form I-765 before submitting online. Will this function return in the future?

A10. When the applicant files online through their USCIS online account, they have the ability to print or save an electronic version of their application before and after submitting. This electronically submitted form has an “Electronic Form Only” watermark and should never be printed and mailed to USCIS. It is for the applicant’s records only. Any forms submitted with this watermark will be rejected by USCIS.

Q11. Is it better to have students complete and submit the Form I-765 by mail or online? 
Which method is recommended and why?

A11. As a practical matter, USCIS will receive an online application sooner than a mailed one. However, that does not mean the case will be adjudicated faster. When you submit your Form I-765 online, you will get a receipt notice and receipt number immediately. After that, you will be able to see other notices in the documents tab, like your biometrics appointment notice (if required), any RFE, or a decision letter. We also will mail paper notices to you, and to your attorney if you have one. In your account profile, you can sign up to receive automatic case updates via email or text message so you will know when we have added a document to your account. Having the convenience and assurance that your notices are all in the account is one of the best benefits of applying online.

Q12. Can a DSO withdraw a Form I-20 recommendation and enter a new one to correct an error? If so, would the 30/60 days be reset?

A12. No, the filing deadlines are mandated by regulations and cannot be modified. DSOs can withdraw or correct records under certain circumstances, but such a withdrawal/correction does not change the regulatory requirement that students file the Form I-765 for post-completion OPT with USCIS no later than 60 days after completing the degree.

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Systematic Alien Verification for Entitlements (SAVE)

Q13. Can USCIS clarify how long students need to wait from entry until information is in SAVE and available to the Social Security Administration (SSA) and departments of motor   vehicles (DMVs)?

A13. SAVE does not contain student immigration status information. Instead, SAVE accesses U.S. Department of Homeland Security (DHS) records and, for student status, relies upon information reflected in SEVIS. The DHS Student and Exchange Visitor Program (SEVP) recommends waiting at least 10 calendar days after arriving in the United States to apply for a Social Security number (SSN).

Q14. Can SAVE work with other USCIS components to allow for validation through SAVE for those in a pending immigration status? For example, for H-4s who have applied for an extension, processing times may be eight months or more, and if they need a driver’s license, they have a difficult time getting the benefits and no recourse to expedite processing.

A14. As stated above, SAVE accesses DHS records and does verify whether a noncitizen has a pending application or petition. Historically, this often required additional manual verification, but SAVE has implemented pending asylum and pending adjustment of status as automated initial verification responses for web browser users and published specifications for system-to-system users (web services) to implement. SAVE is also exploring how to implement automated responses for other applications and petitions.

Please also know that certain H-4 nonimmigrants 1 are subject to the May 4, 2022 temporary final rule (found in 87 Federal Register 26614) that temporarily increases employment authorization and/or the EAD auto-extension period for certain applicants who apply to renew their EAD on time. Specifically, the rule temporarily increases employment authorization and/or the EAD auto-extension period up to 540 days from the expiration date on their EAD. Previously, the EAD auto-extension was only up to 180 days. SAVE will generally verify employment authorization for this EAD auto-extension as part of the automated initial verification.

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Student and Exchange Visitor Information System (SEVIS)

Q15. Some students are running into issues with USCIS not updating SEVIS with the H-1B cap change of status application. Is anything being done to improve this?

A15. This issue has been prioritized for USCIS’ Office of Information Technology (OIT) and will be included as an action item in upcoming meetings with the SEVIS team.

Q16. There have been problems with integration between USCIS and SEVIS for I-765 withdrawals. Since the online application has gained traction, there is an uptick in students applying for OPT without the supporting recommendation in SEVIS. After withdrawal, DSOs issue a recommendation and the student submits a new application, but the recommendation for the second application is being removed from SEVIS as part of the withdrawal for the unsupported application. Is USCIS aware and is there a fix coming?

A16. There is no immediate systemic fix available to account for improper filings. Under the regulations, students must file their Form I-765 with USCIS after the DSO authorizes the student for post-completion OPT in the SEVIS record. If a student applies for post-completion OPT without the DSO recommendation in their SEVIS record, the Form I-765 will be denied due to the lack of the DSO recommendation in SEVIS. The student must then file a second Form I-765.
All regulatory deadlines still apply. The student must file the Form I-765 with USCIS within 30 days after the DSO enters the recommendation in SEVIS. They may apply up to 90 days before program end date but no later than 60 days after program end date. If the second Form I-765 is denied, the DSO can use the DSO mailbox to request a USCIS review.
In terms of the withdrawal, if the withdrawal request is submitted through a customer service ticket or the mailbox, those requests are processed as soon as they are reviewed. If the withdrawal is uploaded to the student’s online account, the request will not be processed until the officer processes the Form I-765. For the scenario in which the student files late, the student must first obtain a USCIS withdrawal acknowledgement, then request that the DSO enter a new recommendation for post-completion OPT in their SEVIS record, before submitting another Form I-765 with USCIS. Again, all regulatory deadlines still apply.

Q17. Can the Vermont Service Center (VSC) and California Service Center (CSC) coordinate the Form I-612, Application for Waiver of the Foreign Residence Requirement approval of the State 30 waiver notification? There is always a delay with this notification which causes delays with the H-1B adjudication. Perhaps an email notification? Does CSC have access to VSC I-612 approvals through a shared system?

A17. Officers at VSC and CSC do coordinate the Form I-612 approval and have information available to help inform the adjudication of the Form I-129 H-1B petition and the I-612 waiver application. Earlier this year, the VSC had a frontlog in data entering the information pulled in from the Department of State system, which delayed the generation of a receipt number and adjudication of the I-612 applications. That frontlog has since been eliminated and receipt numbers are being generated and cases are being adjudicated accordingly.

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Change of Address

Q18. Can USCIS please confirm that if a student has already reported a change of address for a pending case through their USCIS online account, they should also still report their new address through the change of address form on the USCIS website, but they should not provide their pending case number?

A18. Applicants are legally required to complete Form AR-11, Alien’s Change of Address Card (either electronically or by mailing the paper form) within 10 days of changing their address. Applicants do not need to mail Form AR-11 if they use the Form AR-11 webform on the USCIS Change of Address page. Filing the Form AR-11 webform will update their address on all pending applications, petitions, or requests that the applicant includes in the webform. If an applicant does not have a receipt number, they can still submit an address update, but that update will not be recorded in any systems where the individual may have a pending benefit request.
USCIS strongly recommends that applicants also change their address in their USCIS online account to ensure they receive all notices sent to them. 
USCIS is working to improve change of address online, including by ensuring that updates in change of address in an account can will meet the Form AR-11 address change update requirement.

Q19. SEVP already requires students to update their U.S. residential address within 10 days of any change. Therefore, do students also need to complete the AR-11 any time they move post-graduation even once their I-765 application is approved?

A19. According to Section 265 of the Immigration and Nationality Act (8 U.S.C. Section 1305), noncitizens are required to update their address with USCIS while in the United States. Students therefore need to continue to update their address with USCIS by completing Form AR-11 any time they move after graduation, including after USCIS has approved their Form I-765. If a student or applicant does not have a receipt number or does not have a pending case, they may respond “NO” in order to submit the Form AR-11 for an address change only. USCIS strongly recommends that applicants who have a USCIS online account also update their address in their online account profile.

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Other

Q20. Given processing times and case-by-case determinations, it is possible there are applicants who have been waiting to change to F-1 status before COVID-19 was identified in the United States?\

We have an example of a request for assistance involving an applicant that filed a Form I-539 to change to F-1 status in September 2019. Since then, COVID-19 restrictions and SEVP guidance have been in flux, affecting the applicant’s eligibility for change of status and their school’s operations. The university was probably operating completely in person when the Form I-539 was filed, then moved to 100 percent virtual instructions during the initial stage of the pandemic, and then moved to some sort of combination in person and virtual learning as restrictions eased. During all of this, the applicant’s change of status request is still pending.
 

While we do not question SEVP’s actions in light of COVID-19, we believe the agency’s changes complicated DSOs’ ability to comply with SEVP requirements. How are the agencies taking into account these changes during adjudication? What suggestions do you have for DSOs who are advising their schools and potential international students?

A20. As stated in the March 2020 guidance, active F and M students will be permitted to temporarily count online classes toward a full course of study in excess of the regulatory limits stated in 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v) for the 2021-22 academic year. The March 2020 guidance applies to continuing F and M nonimmigrant students who were in valid F-1 or M-1 nonimmigrant status on March 9, 2020, including those previously enrolled in entirely online classes who are outside of the United States and seeking to re-enter the country for the 2022-23 academic year. Students actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside of the country can re-enter the United States, even if their school is engaged solely in distance learning. As far as suggestions for DSOs, it is critical that DSOs update student records in SEVIS in a timely manner. 

Source: AILA Doc. No. 23011711. (Posted 1/17/23)

1. It appears that you are getting a benefit based on the work you have already done. You will NOT be performing any "new" work for the Indian company.

2. I do not see this as an issue. 

As long as you act in good faith (honest intentions), dropping a program of study should not be an issue. Also, you can continue going to school part-time or even full-time if you like while you perform your job on an H-1B or L-1A.

*Please note that the queries have been put together and edited by the Economic Times to address similar questions at once and that the answers are clear and relevant to the audience.

1. My Son was born in February 2020 in the USA, where my wife is on an F1 visa working on OPT. Due to the Covid19 pandemic, I couldn't meet my son for two years. Kindly suggest to me the way forward to meet my son and wife. I also tried to travel on a tourist visa and F1 Visa. Unfortunately, I got both rejections. I'm an Indian taxpayer and an IT employee. 

You seem to be referring to a visa denial under Immigration and Nationality Act, section 214(b).

This law applies only to nonimmigrant visa categories. If you are refused a visa under section 214(b), it means that you did not overcome the presumption of immigrant intent required by law by sufficiently demonstrating that you have strong ties to your home country. Such ties are seen as a reason you will not be tempted to exceed your allowed stay in the USA.

When your spouse is already in the US, your ties to your home country are difficult to demonstrate. If you feel there is additional information that should be considered related to the visa decision, or there are significant changes in your circumstances since your last application, you may reapply for a visa. Note that visas like H-1, H-4 (if your spouse gets an H-1), and L-1 are immune from this problem. So, when your wife obtains an H-1B status, or you can qualify for an L-1 visa, you should not have the section 214(b) denials impede your visa.

2. My brother is a US citizen, and he applied for our mother's green card. Everything is clear, all paperwork is done, but due to the pandemic, we are waiting for the interview date from March 2021. Do you have any information on how we get the date or how much time it will take?

Because of the resurgence of the pandemic and a huge backlog of cases, it is unlikely we will see an immediate resolution of the delays. But consulates have indicated that give preference to families of immediate relatives, like parents, of US citizens. Also, the US consulates have started waiving some nonimmigrant visa interviews, which should streamline their operations for green cards as well.

3. My daughter is in Dallas, US, and under medical treatment. She is there with an IN40 visa. As a father, I want to be there during her medical urgency. How can I get a visa now to be with her in the US?

I am not sure what type of visa your daughter has, but your choice appears to be the same as for any other foreign national, a B visa. The consulates usually issue a B-1/B-2 visa or a B-1 visa for medical issues and attending family members.

4. I am a US citizen currently in India. I am traveling back to the States in mid-February for two months and want to take my Indian-citizen senior citizen mother with me for that duration. Her last US tourist visa expired eight years ago. (She has an active Schengen visa on her passport) Is there a way she can get a short-term two-month visa to the US?

You will have to apply for her tourist visa again.

5. I stayed outside of the US for more than two years because of COVID-19. Am I eligible for naturalization? I came to the USA in August 2016.

It appears that the continuity of your stay required for naturalization has been broken by an absence of one year. An absence from the United States for a continuous period of 1 year or more (365 days or more) will automatically break the continuity of residence. It appears you could apply after 4 years and one day after returning, or easier, 4 years and 6 months after returning. The USCIS provides the following example for your situation:

“An applicant for naturalization under INA 316 departs the United States on January 1, 2010, and returns January 2, 2011. The applicant has been outside the United States for exactly 1 year (365 days) and has therefore broken the continuity of his or her residence in the United States. The applicant must wait until at least January 3, 2015, to apply for naturalization, when the 5-year statutory period immediately preceding the application will date back to January 3, 2010. At that time, although the applicant will have been absent from the United States for less than 1 year during the statutory period, the applicant will still have been absent from the United States for more than 6 months (180 days) during the statutory period and may be eligible for naturalization if he or she successfully rebuts the presumption that he or she has broken the continuity of her residence.

If the applicant cannot overcome the presumption of a break in the continuity of his or her residence, the applicant must wait until at least July 6, 2015, to apply for naturalization, when the 5-year statutory period immediately preceding the application will date back to July 6, 2010. During the 5-year period of July 6, 2010 to July 6, 2015, assuming the applicant did not make any additional trips outside the United States that would cause USCIS to presume a break in continuity of residence, the applicant was only absent from the United States between July 6, 2010 and January 2, 2011, a period that is not more than 6 months. Therefore, no presumption of a break in continuous residence applies.”

You can try. 214(b) denials are difficult to overcome and highly unpredictable.

See this blog entry. https://www.immigration.com/blogs/f-1-students-travel-during-opt-or-h-1…

A1: You will need to contact your DSO for endorsement on your I-20 to travel, evidence that you have been working (like pay stubs), and a letter from your employer confirming that you will be returning to your ongoing employment.

A2: Yes.

OPT is considered an ongoing program. She can travel now, subject only to the Covid-19 related health directives. 

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-are-you-q…
 

F-1 students who already have their visa stamped on the passport can travel back in July. Those who do not have a visa stamping will have to wait for either the consulates in India to open (currently processing only emergency visas, which could include imminent academic session), or try obtaining a student visa in a country other than India. J-1 students will need to apply for National Interest Exemption, which should be given, but only when the consulates open for business.

US Consulates in India have issued the following instructions current as of the date of this write up.  Note that this situation may change quite rapidly/

Visa holders with definite plans to travel who can demonstrate qualification for a National Interest Exception may contact the Embassy or Consulate that issued their visa to request a national interest exception prior to travel:

U.S. Embassy New Delhi:  

U.S. Consulate General Chennai: 

U.S. Consulate General Hyderabad: 

U.S. Consulate General Kolkata: KolkataNIE@state.gov

U.S. Consulate General Mumbai: 

The email must include the following information for all travelers seeking an exception, as it appears on the visa:

Last name:

First name:

Date of birth, in DDMMMYYY format (ie – 01JAN2021):

Gender (M/F):

Country of birth:

Country of citizenship:

Passport number:

Visa Number* and Category:

Issuing Post Name (upper left corner of visa):

Travel dates:

Travel purpose and national interest category, including a clear justification for receipt of a NIE:

*The visa number, also known as the visa foil number, is located on the lower right of the visa.

Each request will be carefully considered as our limited resources allow.  Emails in languages other than English may slow response time.  We aim to respond to each request within two weeks but cannot guarantee a decision date or the outcome of the decision. Errors in the submitted data may prevent approval in NIE requests.

Please note that national interest exceptions, when granted, are valid for a single entry within 30 days of approval.

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-all-you-need-to-know-about-the-current-situation-for-f-1-and-j-1-visas/articleshow/83171279.cms

You have not told us what type of visa you possess. In addition to the NIE, you must meet all the usual requirements for your visa type.

Note: For the NRI readers, The Economic Times has started an immigration helpdesk. A team of experts which includes Rajiv S. Khanna will address the most pressing issues. Please see the link below.

https://economictimes.indiatimes.com/nri/migrate/nri-helpdesk-all-you-need-to-know-about-the-current-situation-for-f-1-and-j-1-visas/articleshow/83171279.cms

Answer 1. In my opinion, you are not violating your status. The USCIS interpretation of CPT is flawed. In my opinion, CPT should be available as long as the course requires. That is true even if the CPT goes on for several years.

Answer 2. In the worst-case scenario, if the government continues in their illegal interpretation of the CPT rules, they can make you go outside the United States for H-1B visa stamping. I do not see how the consulate can deny a visa on the grounds of using CPT. You have done everything by the book.

Watch the Video on this FAQ:

Age Out/CSPA for children immigrating to the US

Video Transcript

Most of these kids are turning to F-1 and the government is giving them F-1/Student visas to go to college, even if the parents are here and even if their names appear on the green card parent screen card. 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.

Watch the Video on this FAQ: Students aging out of H-4

Video Transcript

1. He can change to F-1

2. You are likely to get the H-4 to F-1 conversion and he should be able to do it within the United States. You can check with them about I-20s. File as early as you can and that's the best you can do. He might be able to travel to Canada or Mexico to get his F-1 visa stamp in done. 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.

Watch the Video on this FAQ:

Applying for green card while on student (F-1) visa

Video Transcript

If you are India born then applying for a green card while as a student does not help you much because it's not going to get you a work authorisation nor is it going to get you a green card for another decade. So in theory this is available, but if you are India born maybe not such a good idea. 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.

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.

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.

Watch the Video on this FAQ: Which jobs can qualify for an H-1B visa?

Video Transcript

In this scenario I can't say that your job requires the degree that you have. For instance, if you were a research assistant who basically worked on international political economy and development issues that would be an H-1B job. So it should be clear from the job and that you can't do this job without this kind of a degree.  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.

Watch the Video on this FAQ: Change of status to student F-1 while green card is in process

Video Transcript

Yes, obviously you can try. I think what happens is when you are going to a good school, chances are government will accommodate and they will allow you to go back on F-1 because it is definitely a promotion path a career progression for you. I can't predict if the government will be reasonable or not, but reasonableness would require that they allow you to convert to F-1. Under the Trump administration I do not know how things are going to work out, but as far as predicting your chances are concerned I think you certainly have a shot. 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.

Watch Video on this FAQ: Can a green card be started on F-1 status?

Video Transcript

For people who are born in backed up countries where the priority dates are extremely backed up like India, China, Philippines, Mexico its dangerous to start a green card because F-1 status does not allow you to have immigrant intent whereas statuses like H-1, H-4, L-1, L-2, O-1 etc... allow you to have a dual intent. TN doesn't allow one to have a dual intent, so when you are in these kind of statuses where the dual intent is not permitted and you file a green card you run the risk of having trouble in getting any kinds of extensions, visa stamping or reentry into the U.S. But if you are born in a country like Saudi Arabia, Pakistan or Nepal or anywhere in Europe where these dates are not backed up then sometimes it is possible to get the whole green card wrapped in EB-1, EB-2 or EB-3 category within a year. 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.

Watch the Video on this FAQ: Changing from H-1 to F-1 and back to H-1

Video Transcript

1. Yes.

2. In order for you to reset the H-1clock converting to F-1 and staying within the United States is not good enough. You have to be physically outside the United States for one year otherwise the clock does not get reset. 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.

There is nothing in law that stops an F-1 student from directly filing for a green card. But, exhibiting immigrant intent while on an F-1 visa can raise some issues that should be discussed and planned for with your lawyers.

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.

Watch Video: Changing back to F-1 student status after filing for green card

Video Transcript: If you have exhibited immigrant intent, getting F-1 status should be very difficult. So it is correct that when you have exhibited an immigrant intent the government or the counsellor officers can take the position that you have basically taken yourself out of consideration for a non immigrant visa like a student visa. 

Theoretically at least your chances are made worse because of the green card. I don't think withdrawal of the I-140 necessary helps.

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. 

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.  

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

https://youtu.be/F0YZD8zWm88?t=72

FAQ Transcript:

Let's take an example of this, F-1 is approved, but H-4 extension is pending. Since you want to stay on F-1, you should write immediately to USCIS, put it in writing and make sure that you send it through something like Fed-ex or UPS or certified overnight mail, so that you can prove the delivery of the letter. That way once you have sent the letter of withdrawal out there is a very good argument that any subsequent approval of H-4 does not hurt your F-1, since you have already indicated an unambiguous intention and made a request to USCIS to revoke or withdraw an application which is currently pending but you don’t want to be acted upon.

The risk here is you got the F-1 already approved and don't want to be H-4 acted upon, because there is  something called  last action rule, which is really not a rule but merely a matter of common sense applied by the USCIS offer to the situation, that whatever status approved last would be your status. So you have F-1, H-4 going on same time, you got your F-1 approved. If your H-4 gets approved that means you are back on H-4. So at least  that is the conventional wisdom and there is some question about whether or not that is correct but nevertheless smart thing to do is if you already received  the approval that you want go ahead and revoke in writing what you don't want .  

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

https://youtu.be/ZvUVIGTM-Kk?t=520

FAQ Transcript: 

Answer is yes. They can't convert within the United States, but they can go outside of USA and try to get F-1 stamped and come back. That does not  get rid of  two year residency visa. However, remember two year residency visa requirement only says this:  if you have J-1 or a J-2  which is subject to the 212 (e) HRR, you cannot convert  to H, L or Green Card, but you can  if you want to change to F-1 visa but not within the United States as far as I remember. It does not allow the change of status also. So you can always get a visa stamping done and you can do it without the waiver, F-1 does not require waiver. However if down the line you decide to convert to H-1, your J-1 holding spouse either must have received the waiver or a home residency a fulfillment of 2 year residence abroad to the home country.

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

https://youtu.be/y6RtaKhuoIY?t=864 

FAQ Transcript:

I do not know. But let me tell you this when you look at the expedite criteria for any government document they are basically the same. If you can show government error or economic necessity or emergency or some kind of humanitarian considerations - there is five or six criteria then apply. As general observation I think it should be possible to expedite H-4 EAD if you meet the requirements. Theoretically it is possible to expedite the H-4 EAD.

Siblings Green Card is like  planting mango trees, in India we used to have saying that mango trees takes so  long to bring fruit that one generation plants the tree and the second generation eats the mangoes. It's kind of that for sibling cases, it takes 13 years for the Green Card to come through and there is no way we can expedite that Green Card. However  leaving the option of Green Card filing  you could look at the things like  sponsoring her for her student visa if she wants to study or if she is an professional  or intent to be professional soon she can come on H-1 or L-1 visa, like other people  do. f you have money you can gift her half a million or million dollar depending upon what kind of money you have  that you can invest in her. So Investment visa could be an option but  there is no way you can expedite sibling green Card.

In my view, it is unsafe to travel on an existing visa after being out of status. If they become aware of your status problems, CBP, upon returning, can turn you back at the airport, or worse, even formally deny you admission thereby laying a five-year bar against reentry.

There are several issues that should be examined before you can make an informed decision.

1.  B visa or ESTA does not allow you to “work:”

To enter the USA, a B-1 visa or ESTA (Visa Waiver Program) is a good option, but you need to remember, these visas do not allow you to actually engage in income generating business yourself.  There are several impediments to what you can do.  You are, of course, allowed to enter the USA, seek a business, negotiate and/or purchase the business.  You are also allowed to incorporate and/or start a new business, including, a US branch of your business in your home country.

Read about B (the same limitations exist for ESTA entries) visas: http://www.immigration.com/visa/b-visa/b-visa-overview

 

2.  Are you already a part of or own an established business in your home country?

(a)  Yes: Look at the following options:

                                                               i.      L-1 (Intra-company transferee – visas where you have or are starting a company related to your foreign company) http://www.immigration.com/visa/l-visa/l-visa-overview

                                                             ii.      E-1 and E-2 (Treaty trader and treaty investor visas – require a treaty between your home country and the USA.  India does not have any such treaties with the USA.  http://www.immigration.com/visa/e-visa/e-visa-overview

                                                            iii.      EB-5 (These are investment-based green cards requiring investment of $500,000 or $1 Million and creation/preservation of ten American jobs over two years) http://www.immigration.com/greencard/eb5-green-card/eb-5-investment-green-card

(b)  No: Look at E-1/E-2 and EB-5 visas (links are in the previous para).

3.  Should you convert from B visa to any other visa?

Generally speaking, that is a bad idea.  Watch this video:  http://youtu.be/es4SlhcXr9E

For more information related to B visas, you can watch videos from this play list: https://www.youtube.com/playlist?list=PL13184E6EA97A1593

4.  How do you start a business in the USA:

This matter should be addressed based upon the advice you receive from legal counsel in the State where you wish to start your business.  The incorporation of foreign business entities is regulated at the state level (as opposed to the federal or national level) in the United States. The application process will vary from state-to-state.  Here is a good resource page from SBA, Small Business Administration (SBA is a US Government agency) on the types of business entities you can form in the USA.  Generally speaking, you, as a B or ESTA visitor, should be able to form any of these entities:  http://www.sba.gov/category/navigation-structure/starting-managing-business/starting-business/choose-your-business-stru

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

1. Once you receive a recommendation for post-completion OPT from your Designated School Official (DSO) to pursue OPT, you must apply for an employment authorization document (EAD) with USCIS within 30 days. Additionally, you may file up to 90 days prior to your program end-date and not later than 60 days after your program end date. 

2. If you have completed a qualifying Science, Technology, Engineering or Mathematics (STEM) degree, and you are currently in an approved post-completion OPT period based on a designated STEM degree, you may be eligible to apply for a 17-month STEM extension of your  post-completion OPT. For a STEM degree to qualify, it must appear on the STEM Designated Degree Program List. If you want to apply for a STEM extension, you must file for an extension of your EAD with USCIS before your current OPT work authorization expires. USCIS recommends that you file 90 days before the expiration of your OPT.   

For further information visit the USCIS page on F-1 OPT requirements

Generally speaking, you will need to demonstrate that the termination was erroneous. Ask your DSO for a letter explaining that. In addition, you can add your own statement/affidavit explaining the circumstances. Your DSO should help with all this.

A student should have no negative impact on off-campus employment if s/he has the USCIS-issued Employment Authorization Document and a Form I-20.

You will need a new visa only if you return after August 2013. Check with your DSO to make sure you have all the appropriate requirements completed.

Yes.  F visa is NOT forbidden.  But you will not be able to get an H-1, L-1 or green card unless you address the HRR through compliance or waiver.

You have two choices that I can see: apply for reinstatement or go outside USA and reapply for a visa.

You can just apply for your green card. Do not travel outside USA until you get your green card (or travel only as advised by your lawyers).

You will have several years of wait in the green card process.

I do not see any problem if the 130/485 is filed during the 60 days following the F-1. In any case, she can and should apply for OPT.

You need to get back with your International Students Office and see what they recommend.

I do not know the details of your case or your SEVIS status. If your International Students Advisor is experienced in immigration law (most of them are), you should take their advice but ask them to tell you the reason.