World Journal Weekly Q & A - September 8, 2013

Q & A 1. 2. 3.

Q&A 1.


Reader Wishes to Clarify Curricular Practical Training (CPT) Length vis-à-vis OPT and What to do Until 10/1/13 Since There is a Problem with OPT and the H-1B Has Been Approved.

A confused OPT user asks:

I received USCIS notice saying my OPT extension was denied because I had worked full time CPT over a year. My actual CPT situation is like this: full time CPT for 11 month, part time CPT for 24 month.  On USCIS’s notice, it calculated my CPT’s total time was 11 + 24*0.5 = 23 month.  Which mean they amounted my part time CPT into full time CPT.

My confusion was:   
I read many of my school and other schools’ CPT and OPT documents, it seemed to clearly indicate that part time CPT doesn’t affect OPT and that if the full time CPT was over 1 year, it would affect OPT.  Does the school misinterpret the CIS’s rule or CIS made a mistake on my case

On the CIS’ notice, it stated that I could not appeal the decision, but I can submitted I-290B form for a motion to reopen the case.  I must file the motion within 90 days of the notice.   However, my OPT would start on June 24 and it would be too late.

I applied my H1B this year and was granted.  But it starts on 10/1.  If I have no OPT, between 6/24 and 10/1, I will not be able to work.  I was plan to hand in my master thesis and graduate in June, but now the only way I can do it is to delay my thesis and graduation for few more month, and apply for full time CPT for few months and then use the CPT time in June until 9/30.  On 10/1, I will start on my H1-B. 

Is it feasible? Or do you have better recommendations?

Dear reader:

While there is no limitation of time on CPT, you must have had less than one year of CPT in order to obtain your optional practical training (OPT). U.S.C.I.S. has added up your total time (both full-time and part-time) on CPT to determine that you have had over one year and do not qualify for OPT. Its calculation appears to be correct. You also have a misconception as to the period of time to make a motion to reopen a U.S.C.I.S. determination, which is 30 and not 90 days. As you have no OPT, you have no authority to work while waiting for the H-1B to come into effect on October 1st. Your plan to now delay your graduation, apply for CPT for a few months and then use CPT until October 1 appears viable as long as the school is able and willing to cooperate. I have no other recommendations.


Q&A 2.

In H-1 Transfer, Can the Reader Work As Soon As the Lawyer Sends Out the Paperwork or Should He/She Wait Until the Receipt Comes Out?

An H-1B visa holder asks:

I am holding H-1status and recently got a new job. I am applying for change of my H-1 visa.  My question is: Do I need to wait until I get the receipt or just as soon as my lawyer files the papers before I start working for the new company?

I believe it’s best to wait for the receipt.  However, the estimate time of receiving the receipt and my tentative start date is less than 2 weeks.  It seems the rule is to give the current employer 2-week notice. Should I request the new company to do premium processing?

Dear reader:

It is always best to wait until you obtain some confirmation that the H-1B transfer application has been feed in. There is always the risk that something may be wrong with the application or the payment which would cause the petition to be rejected. In that case, you would be illegally working if you jumped on board to the new employer. Quicker confirmation that the case has been receipted can be though  requesting premium processing, but you and the company must be aware that U.S.C.I.S. charges a $1225 fee for expedited processing. Whether the additional amount is worth it to you and the company is a judgment that you both will make. I also note that most requests for premium processing do not involve merely a chance to obtain a faster receipting, but also the beneficiary staying with the old company until the new H-1B is approved to ensure that he or she is constantly on firm legal H-1B ground.

Q&A 3.

F-2 Holder Going to College Without F-1 Status Worries That This May Give Him/Her Problems.

An F-2 visa holder asks:

I entered the U.S through F2 status in 3/2012 and contacted a city college to change from F-2 to F-1 status in 11/2012.  I registered, paid tuition and received a I-20 from college.  I was told to mail to USCIS.   In  3/2013, I received USCIS’ denial and was told I was still a F-2 status.  The college’s administrator wrote a letter to USCIS stating that it was his fault that I was allowed to study in the spring session (started in 1/2013)  at the school and request for an approval.

In 5/2013, USCIS sent me another letter and asked for evidence that I did not go to school and pay fee for I-901.  I contacted school again and was told that the school could not change the registration record from “active” to “initial”.  After 5 to 6 months, I decided not to change status to F-1.  I called USCIS telephone hotline and inquired my case status twice and was told I was F-2 status.

My questions are:

  1. At USCIS’ denial notice, it indicated that if I was a full time student, I violated my F-2 status.  Will this violation affect my future application, such as H-4?

  2. Will USCIS ask me to leave the U.S.?

  3.  What else should I do or I should just wait for the denial?

Dear reader:

1.F-2 holders who take a full course load are in violation of their status. As it appears that U.S.C.I.S. is not taking any action against you at this time, the violation would probably not affect a future change of status to H-4.

2. Theoretically U.S.C.I.S. could send you a further letter asking you to leave the U. S. if it has proof that you have been going to school full-time under your F-2 status. There is a chance that U.S.C.I.S. will do nothing if it does not receive a response from you as it appears that your case was already previously denied.

3. You can wait to see whether U.S.C.I.S. sends you a further denial. You can also reduce your schooling load to less than full-time to be in compliance with the law.

 

Copyright © 2003-2013 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.

 
   
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