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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24185
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Hi, Judith. I am an international student. My OPT application

Resolved Question:

Hi, Judith. I am an international student. My OPT application has been denied since I mailed the materials to USCIS 5 days later than the 30 days limit. I was rejected on the last day of my grace period. So now, ISO said the status of my I-20 is completed, they cannot issue a new one to me. The only way I can do is to motion a reopen/reconsideration, do you think it is a good choice?

Details are as follow:
7/2, ISO issued new I-20
8/2 I sent the materials
8/6 USCIS received my documents
I set graduation date as 8/16, and OPT begin at 10/15
(But later, I found my diploma states the graduation date is 9/7)
10/15, USCIS rejected my application.
10/21 I got the formal notice of rejection.
Submitted: 8 months ago.
Category: Immigration Law
Expert:  Judith replied 8 months ago.

Hello, my name is Judith. Thank you for this opportunity to answer your questions.

Your DSO did tell you the only option you have available and you would have to set forth why your application was sent 5 days beyond the allowable 30 days. The reason has to be that there were some circumstances beyond your control, such as a medical emergency for you or a close family member, etc.

I do note in your outline above that you said your graduation date was 8/16 but your Diploma says 9/7/13. What is controlling is the date on your I-20 which says the completion date when you finished your requirements. The Diploma would have the Commencement Date when the Diploma was awarded but often that is after you have met the degree requirements and completed your course of study.

So you would not have an argument that you should be able to file a new I-765 up until 11/7/13 if your I-20 has an earlier completion date.

This is most unfortunate. Regrettably, it happens often, students do not know of the 30 day deadline, but there is no exception in the law for lack of knowledge.

You only other option now would be to enroll in graduate studies and seek a reinstatement of your F1 status. You might be able to qualify for Curriculum Practical Training if the advisor feels that it would be an integral part of your program of study.

Judith

Customer: replied 8 months ago.

I was pretty busy from July to Aug for preparing my final project. Do you think it is a good reason?


Also, the instructions of applying OPT on my college's website states"mail materials within 30 days".I didn't realize it should be received in 30 days, so I mailed I-765 on 8/2. BUT July has 31 days! I was out of mind at that time.


 


So, I am not sure is it a good idea to use the two reasons for motioning to reopen.


Or like you said, to enroll in another college, but it is nearly Nov now, most institutions' deadlines are pretty close.


 


Considering the two options, which one do you think is better?

Expert:  Judith replied 8 months ago.

Honestly, I do not believe your Motion to Re-open and Reconsider will be considered exceptional circumstances. What you have described to me is what most students face as the come to the completion of their studies, deadlines and projects that must be concluded to meet degree course requirements.

So that leaves the only other option of continuing your education and pursuing a graduate degree and seeking reinstatement.

The school that accepts you will have to agree to recommend your reinstatement, but generally this is no issue for the school.

Of course, there is the option of leaving the US and coming back if your F1 visa stamp is still valid or applying for a new stamp.

 

Judith

Customer: replied 8 months ago.

Hi, sorry for the late reply.


So, if I am going to seek a university to further my education.


Can I stay in US to complete the application? Is my status legal?


Because the most possible term I can entry is winter term, which starts usually at Jan. So, from now can I stay in US until a university issue me a new I-20?


My F-1 visa is invalidate now.

Expert:  Judith replied 8 months ago.

No you are here out of status. That is why I said you would have to request reinstatement of your student status.

Your new school would have to give recommend reinstatement on the new I-20 and then you would file the request for reinstatement, Form I-539 with the new I-20.

You are not in status until USCIS approves the request.

As I said, you may also depart and come back on the F1 visa stamp and the new I-20 if your visa is not expired.

This may help you understand reinstatement

http://www.columbia.edu/cu/isso/visa/F-1/F-1_reinstatement.html

 

Judith

Customer: replied 8 months ago.

I am still a little bit confusing...


So the order of to-do list is :


1. leave US


2. apply a new school


3. New school give me new I-20 and recommend reinstatement


4. I file the reinstatement request


5. USCIS approve me


6. I use the new I-20 to apply a new F-1 visa stamp out of US


7. come back to US


 


Am I right? Or is there anything need to be changed?


 

Expert:  Judith replied 8 months ago.

I am sorry I have not been clear.

 

You are already out of status.

 

Therefore, you have two alternatives.

 

1. Depart the US and come back with a new I-20 on your current visa stamp. If your F1 visa stamp is expired then you have to get a new one at the US Embassy to return.

 

OR

 

2. Apply to a school here; get the new I-20; file the I-539 and request reinstatement. You are required to attend school while the reinstatement is pending. That means you would start school in January because reinstatement takes 3-5 months to be approved.

 

So those are your options.

 

Judith

Customer: replied 8 months ago.

Now I understand. Thank you!


Since I have got two MA degrees, one is from US and one is from UK.


So, should the new academic program I apply be higher than an undergraduate level? Or any school is OK, like a language school.

Expert:  Judith replied 8 months ago.

You would have to be pursuing a higher level of degree, in your case a PhD. You could not do a language school and request CPT.

 

Judith

Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24185
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Judith and 3 other Immigration Law Specialists are ready to help you

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