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Student Visas and Issues

Student Visa Issues

F1 Visa & D/S Duration of Stay

The US Consulate and/or USCIS will issue or change status to a F1 Student visa for Applicants that have the following:

  • Maintain a Full Course of Study and are proficient in English;
  • Have Sufficient Academic Credentials to attend a particular institution;
  • Have been accepted by an approved school and have an I-20 issued by the approved school;
  • Have a residence abroad, with no immediate intention of abandoning that residence;
  • Intend to depart from the United States upon completion of the course of study; and
  • Possess sufficient funds to pursue the proposed course of study.

The Student visa is generally valid of “D/S” which means Duration of Status or “Completion of education program (including practical training +60 days” The 60 days can be used for preparation of departure or transfer to another school.

OPT – Optional Practice Training

Students on F1 visas are generally eligible for Optional Practical Training (OPT) when:

  • The applicant is a full time student for at least one academic year which is normally 8 to 9 consecutive months (unless a graduate student in a special program);
  • The training is related to course of study of the F1 visa;
  • The employment is for the purpose of practical training; and
  • It is not for English language training.

OPT may be exercise in one of four circumstances:

  • During student’s annual vacation and at other times when school is not in session;
  • While school is in session as long as it does not exceed 20 hours per week;
  • After completion of all course requirements;
  • After completion of the course of study.

OPT is limited to 12 months (non-stem students) and the training must be completed within 14 months of graduation. STEM students (Science, Technology, Engineering, or Mathematics) can obtain one additional 17 month period (29 months in total) if the Employer is enrolled in the E-verify program and agrees to report the students departure within 48 hours.

Many students training under OPT later find jobs with their current employers or new employers and subsequently file for H1B visas. The rules relating to whether a student on OPT may stay in the US and/or work while the H1B visa is pending (and subsequently approved) are very case specific and its imperative to obtain the best guidance possible by an experienced Immigration Law Firm. Contact Cipolla Law Group to schedule a consultation.

H1B Visa & Cap Gap

A common change of status for students in the United States is from F1 Visas is to H1B visa status when an offer of employment is received. Many times, the student is on OPT as most students begin OPT immediately after graduation. A common problem for F1 students is referred to as the “Cap Gap” problem. United States immigration office refers to the Cap Gap problems as follows.

Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

The Cap Cap occurs when:

An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

To determine whether you may be eligible for an H1B visa and if you qualify under the Cap Gap, contact Cipolla Law Group today to schedule a consultation.

F1 Overstay

Persons on F1 are not considered an overstay for purposes of INA 222(g) unless a USCIS Officer or Immigration Judge has made a determination that a status violation has occurred. However, for purposes for extending status or changing status, an F1 that overstays beyond the 60 day grace period is considered an overstay. It is always encouraged to comply with the terms of your status and it is strongly advised against overstaying. To understand your status and possible options, contact Cipolla Law Group today for a consultation.

Marriage to a US Citizen & Pre-conceived Intent Problem

It is common for F1’s to marry a US Citizen. However, an F1 visa holder is on a non-immigrant visa. When applying for a green card, the F1’s intent is now considered as “Immigrant Intent.” This can create a problem of preconceived intent. When applying for permanent residence through marriage, it is important to have an experienced Immigration Attorney review and prepare your case. Contact Cipolla Law Group for a consultation.

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