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OPT Extension for STEM Students Could be in Jeopardy

Back in 2008, Optional Practical Training (OPT) was extended from 12 to 29 months for STEM students but a ruling by a court last week puts this extension in jeopardy. OTP is available to students on F-1 visas who have graduated or have been working towards a degree for nine months. OPT allows students to gain a practical working experience that is related to their field of study. The OPT extension is only for students in STEM (science, technology, engineering or math).


Last week a court ruled that this extension was invalid because the governmentfailed to seek public comment before extending the OPT period. The court decidednot to outright declare the OPT extension invalid but instead gave the governmentsix months to cure the problem and submit the extension for public comment.

Fortunately this means the problem could be fixed in six months, but if the courtisn’t satisfied upon further review it could mean that students working on OPT maybe forced to terminate their employment and leave the US.

Although the OPT extension program requires public comment as of now, theextension period is still valid up until February 12, 2016, the court given expirationdate. Also, F-1 students may still apply for an OPT extension and be granted theextension until the six months has run.

The OPT extension is important to many students as US schools enrolls hundreds of thousands of international students each year. According to the Institute of International Education over 800,000 international students were enrolled during the 2013-2014 school year. This represents an 8% growth from the previous year and puts international student enrollment at an all time high. The highest percentage of international students is from China, and the second highest percentage is from India.

Ending the OPT extension program would be a disservice to the many students who benefit from the program and the US economy that benefits from the skills brought into the workplace. OPT allows foreign students to exercise and hone the skills learned in school in a practical workplace environment. The US economy benefits by bringing in specialized skills to the workplace and bettering US companies.

The most popular majors among international students are engineering, math,computer science and business. Foreign students are studying areas that US companies need to advance. Engineering and computer skills bring innovation,product creation and efficiency into the workplace. The OPT extension program allows these skilled graduates to better US companies and create successful products and which can lead to job creation and high sales. As the program stands it ensures graduates can bring these important skills into the workplace, hopefully foreign students and the US can continue to benefit from this program.

Any questions about OPT extension program or F-1 student visas can be answeredby an immigration attorney. Contact the Law Office of Sweta Khandelwal to discuss OPT extension, F-1 visas or any other immigration issue. Attorney Khandelwal is animmigration attorney located in the Silicon Valley.

Cited Sources:

Federal Court Rules on OPT Extension, August 14, 2015, The National Law Review

Institute of International Education, 2015


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Foreign Students and the H-1B Cap Gap

With the school year coming to a close, it’s time for foreign students to start thinking on ways to continue to remain in the United States, following the conclusion of their academic programs. Some college students on F-1 visas who are authorized to work pursuant to the Optional Practical Training (OPT) program are able to find jobs in their field of study and may continue to remain in the US their stay on an H-1B visa. However, moving from an F-1/OPT directly to H-1B can create a gap of time between the expiration of the OPT and before the H-1B visa starts. Fortunately there is a Cap-Gap, which allows applicants with pending or approved H-1B’s to extend OPT work authorization to cover this gap.

What’s required for an F-1 extension?

students-1197349-mIf you’ve secured an employer that will apply for an H-1B on your behalf, it’s essential that the H-1B is timely filed. The H-1B should be applied while the OPT is still in effect.

If the H-1B application is selected in the lottery and approved, an automatic F1/OPT extension will take place. On October 1st when the H-1B visa can officially take effect, the applicant should request a change of status. This will allow for a smooth transition from F-1/OPT to H-1B.

Things to watch out for

  • If the H-1B application is not chosen in the CAP or the H-1B application is denied, the applicant will be granted a 60-day grace period. During this time the applicant must make plans to leave the United States.
  • Once an applicant enters the 60-day grace period, the applicant is no longer authorized to legally work inside the United States.
  • Travel abroad during the OPT period is allowed, however the applicant will not be able to re-enter the United States without a valid F-1 visa, as stamped on the passport. Students are advised to have their latest I-20’s, as well as proof that they are employed pursuant to their OPT, in the event of foreign travel. If the applicant does not have a valid F-1 Visa, the applicant must apply for an H-1B visa at consular post outside of the United States before attempting to re-enter.
  • F-1 extensions are generally granted until September 30th. However, the H-1B employer may intend for employment to start later than October 1st which can create another gap. Should this happen, the Designated School Official of the student on F-1 can fix this gap. It is important to pay close attention to the start day of H-1B visa and end date of F-1.
  • Getting laid off by an H-1B employer before H-1B visa takes effect does not mean the applicant has forfeited his visa and must exit the United States. The student may be able to recover unused Optional Practical Training and continue working in the United States, as long as several additional requirements are met.

To ensure you are eligible for F-1 extension under cap gap it is important to be cautious of timelines and required paperwork. Because there is a transition from one visa to another, accuracy is important to ensure the applicant does not find himself in the United States without a valid visa status. Consulting an attorney is a good idea to ensure all filings are done correctly.

Contact the Law Office of Sweta Khandelwal today to discuss F-1 student visas, H-1B’s the Cap-Gap or any other immigration questions you have. Ms. Khandelwal is an experienced immigration attorney located in the Silicon Valley.


Cited Sources:

Extension Of Post Completion Optional Practical Training (OPT) and F-1 Status forEligible Students under H-1B, USCIS, March 15, 2013



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How President Obama’s “Immigration Accountability Executive Action” Affects Employment-Based Immigration

President Obama’s “Immigration Accountability Executive Action” proposes several changes to the immigration system many of which could affect employment-based visas. The proposed changes could be good news for employees and employers by decreasing wait times for certain classifications, allowing spouses of H-1B visa holders to work and in some cases increasing the amount of time a employee can remain on his visa.


The employment-based changes will affect green cards, H-4, L-1B, OPT and PERM classifications.

ecutive Action re Pre-Registration for Adjustment Cases
Main proposals:

  • Decrease wait time to file adjustment of status
  • Pre-register for green card and receive green card benefits while waiting for approval
  • Allow the temporary non-immigrant visa holder to change jobs while before green card is approved

The Executive Order’s proposals for readjustment cases will significantly benefit temporary non-immigrant visa holders. These visa holders will no longer suffer from long wait times before they eligible to even apply for a green card. Scrapping long wait times will allow immigrants to move through the once long and extensive process much faster. Green card holders are given more rights and benefits than temporary non-immigrant visa holders, and now workers can enjoy these benefits sooner.

Temporary non-immigrant visa holders will be able to change jobs while waiting for green card approval. If a worker receives a promotion or change in job title the lengthy green card process won’t have to start over again. This allows foreign workers to advance their careers faster and with greater ease. These changes will benefit the economy and increase the attractiveness of working in the United States.

H-4’s Ability to Work
Main proposal:

  • H-4 visa holders, spouses of H-1B visa holders can obtain work

Currently H-4 visa holders cannot work in the United States. This proposed change could greatly benefit families coming over the United States. Families may now have the ability to benefit from duel incomes, increasing their wealth and increasing the attractiveness of the H-1B visa. Allowing spouses to work may make the decision to travel to the United States easier on families now that spouses will not have to completely give up ability to work.

L-1BApprovals and Specialized Knowledge
Main proposal:

  • More specifically define “specialized knowledge” to decrease denials of L-1B visas

L-1B visas are granted to workers that possess an advanced knowledge specific to his employment. However, the term “specialized knowledge” is not well defined, which has led to several L-1B denials. The DHS has been consulting with the State Department for the past couple of years in an effort to update the definition of “specialized knowledge.”

Providing additional insight to the meaning of “specialized knowledge” will allow employers to more adequately find employees that fit under this visa classification. This can save employers considerable time and money filing L-1B visas that are subject to denial because the employee’s skill set doesn’t meet the definition of “specialized knowledge.”

Optional Practical Training (OPT)
Main proposal:

  • Students on OPT can extend stay for longer periods of time

OPT is a beneficial tool for students, specifically in the fields of science, technology, engineering and math, to work in the field that they are studying. This allows students to gain practical experience and be more attractive to employers.

Extending the length of stay on OPT will allow employers to employ a student longer without students having to go back to his home country. This will allow students to gain more skills and become more marketable by gaining considerable practical experience working in the United States.

Main Proposal:

  • Full revamp
  • Modernize PERM system
  • Foreign entrepreneurs subject to “parole” system

Obama proposes the PERM system undertake a full revamping to modernize the PERM system and modernize outdated practices. This could make the PERM process easier and quicker to move through.

Foreign entrepreneurs that invest a certain amount of money in the United States will under a new “parole” system. This could benefit the United States economy by bringing in more money.

ContactThe Law Office of Sweta Khandelwaltoday to discuss how the Immigration Accountability Executive Action and how it could affect your employment-based

Cited Sources:

AILA’s Take on President Obama’s “Immigration Accountability Executive Action” Plan, American Immigration Lawyers Association, November 24, 2014

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F-1 Student Visa Options After Graduation

Many universities are home to foreign students from all over the world. These foreign students spend four years earning a phenomenal degree from American universities while also building friends and network connections. However, for many of these students are forced to leave the United States because they haven’t secured proper post-graduate visas. A F-1 student visa, which is what most if not all of these students are covered under, is temporary and only allows a person to stay in the United States as long as they are a student. In this article, we will explore what kind of options are available to F-1 visa holding foreign students after graduation.

F-1 -> OPT

Although there is no such thing as an “OPT visa”, a student may extend their F-1 status if they can secure optional practical training (OPT). There is a maximum of a single 12 month extension and starts upon graduation or completion of course of study. This is mostly handled through the F-1 student’s school’s international students department.

F-1 -> H-3

For a student who doesn’t want to stay in the United States for an extended period of time but still wants to pursue further training may find the H-3 visa appropriate. The H-3 visa is for “trainees” who do not have the appropriate education or work experience for a particular position, but would like to be trained to do so. An H-3 visa seeker can stay for two years, but cannot transfer to H-1B or L-1 visa status and must intend to transfer the knowledge and training that they receive back to their home country.

F-1 -> H-1B

An H-1B visa covers the typical scenario when a student is able to secure a position after graduation. An H-1B visa would allow the student to work without the one year restriction the OPT has. However, H-1B visas are notoriously difficult to secure, as we have covered before. Students who are looking for a H-1B visa to cover them this fall should speak to an attorney soon, as the filing for H-1B visas starts on April 1, 2014 and last year the quota filled up in only four days.

F-1 -> R-1

F-1 students may also pursue an R-1 visa if their post-graduation work is religious in nature. The F-1 student must show that they were a member for at least 2 years preceding the application. The organization itself must also prove that it has tax exempt status as a religious organization. Site visits are also known to occur to verify the religious nature of the organization and the work of the R-1 visa seeker.

F-1 -> Green Card

There are five employment based green card categories and five family based green card categories. Each one requires different forms of proof, different requirements to satisfy, and is for different kinds of people. Students should speak to an immigration attorney to see which green card option is the most appropriate for them.

There are many nonimmigrant visa options we did not cover in this article, including E-1/E-2 visas, L-1, B, J-1, Q, and others. The options are wide and varied, and sometimes require coordination with the student’s school, potential employer, and an immigration attorney. Students should start exploring their options early, especially if they expect to graduate this semester.

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