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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94313
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Hi, Im an international student currently working on OPT.

Resolved Question:

Hi,

I'm an international student currently working on OPT. My OPT period ends March 20 next year, and I'm not qualified for STEM extension. So if my employer sponsors my H1B, I can't work while I'm waiting for the result. Is there a way I can keep working? Thanks!
Submitted: 10 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one.




Probably not going to have a good solution for you. There are options, but none that you will like. Please remember two things. 1) These laws are not created to help you, they are created to help the U.S. find good workers when no U.S. workers are available and 2) please do not shoot the messenger of bad news.


You recently finished a bachelors degree program?
Customer: replied 10 months ago.

The OPT I'm on is from my Master degree program I recently finished.

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Then it will probably be even worse news. What country are you from? What is your degree program?

Customer: replied 10 months ago.

I'm from China. The degree program is called Master of Interactive Technology. (http://www.smu.edu/Guildhall/AboutUs/Curriculum/MastersInformation)

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.

Well, you have a few not so good options:

1) You can apply for a B-2 visa to try to cover you from the end of your OPT until October 1, 2014.

2) You can apply for a new program under an F-1 or M-1 student visa to cover you from the end of your OPT until October 1, 2014.

3) You can leave the U.S. until you can come back a few days before October 1, 2014.

4) You can apply for a cap exempt H-1B at any time, but those are jobs at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization.Those are not subject to this numerical cap.

Like I said, the options are not good.Option number 2 is ok if you can find a program but you won’t be able to get OPT through that program unless it is a higher degree than your masters degree.Also a J-1 is a possibility, but I recommend that you find a program that does not have the 212(e) two year home Residency requirement. I am truly sorry but the options are limited.I wish I had better news for you.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you.Even after you rate the service, I can still answer additional questions for you without additional charge.If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/ and make sure you type: FOR GUILLERMO on the subject line.Thank you!

Customer: replied 10 months ago.

Thanks for the answer. I'm not entirely sure I understand the options. I believe I can still legally stay in the US, because by the time I apply for H1B, I'm still in the 60-days grace period, so I can stay until I get the result of H1B, is that correct? If that's true, it seems to me that the option 1, 2, and 3 don't really help me.


 


Could you please also comment if the following will make me qualified to work while waiting for the result of H1B:


 


According to USCIS website: "If their post-completion OPT expires while the 17-month extension application is pending, students who timely filed their STEM extension applications with USCIS will receive an extension of employment authorization after their current employment authorization expires, but for no more than 180 days."


 


So can I apply for extension at the end of my OPT period, and use this extension to cover the little gap between the expiration date and H1B filing date (April 1st), so I can be qualified to work during the cap-gap?

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.
You mention STEM, but didn't you state that you do not qualify for STEM?
Customer: replied 10 months ago.

No I don't qualify. I'm just applying to extend my OPT for a little longer, so it covers my H1B filing date. I want to know if this works this way.

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.
Here is the official link:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7f1a046c43360210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD



So you should be covered by the cap-gap even if you are on your grace period during that time. It says, "Which petitions and beneficiaries qualify for a cap gap extension?

H-1B petitions must be timely filed on behalf of an eligible F-1 student. “Timely filed” means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period.”)"

 

However, you would not automatically be allowed to work:"What if the post-completion OPT expired before April 1? It appears that F-1 status would be extended, but would OPT also be extended?

A student who completed his or her post-completion OPT and who subsequently was in a valid grace period on April 1, would benefit from an automatic extension of his or her D/S admission under the cap gap, if the H-1B petition is filed during the H-1B acceptance period, which begins on April 1. The employment authorization, however, would not be extended automatically, because it already expired and the cap gap does not serve to reinstate or retroactively grant employment authorization."

 

 

You can work closely with your Designated School Officer (DSO) in that regards XXXXX XXXXX if they can get you an EAD during that period, but you may not be able to get one.

 

 

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.

 

Customer: replied 10 months ago.

Thanks for the info. I understand that I will be covered by cap-gap and won't be able to work during that. That's the problem I'm trying to solve. By applying to the STEM extension, I'm trying to extend my EAD for a little while, to cover April 1st, the date of filing H1B application. My question is, will this make me qualified to work during cap-gap? Thanks.

Expert:  Guillermo J. Senmartin, Esq. replied 10 months ago.
If you can extend your OPT, yes, that would make you eligible to work, but I think you will have to work with your DSO to make that happen because I don't know how you will apply for STEM if you do not qualify for STEM. Please do not forget to rate me positively. As I do not receive a salary, it is the only way that I get credit for my service to you. You are not charged again and I will not abandon you after you rate me positively if you have additional questions. Thank you.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94313
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 3 other Immigration Law Specialists are ready to help you

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