Immigration Law for International Students: Frequently Asked F-1/OPT Questions

Last year, Kathleen spoke online to international students at Texas A&M. The questions they asked are common ones, so we’re running them in hopes that they help you with your situation. Our first batch dealt primarily with H-1B visas; this batch deal with F-1 visas and Optional Practical Training (OPT).

These answers are the first words—not the last words—on these issues, and if you have any questions, consult an experienced, reputable immigration lawyer. 

 

If my F-1 status is about to end and I’m pending a Change Of Status, am I legally able to stay within the United States?

If you were in status at the time your change of status was filed, and you timely filed the change of status, then the pending change of status is a period of authorized stay.

 

If I am pending a Change Of Status and it is rejected, when does the unlawful presence start to accrue? The date of rejection or the date the previous status expired?

It depends on the status you held at the time of the filing, and the actions you take after a rejection—like re-filing—could make a difference. From a very conservative point of view, I would say that your violation of status began once your initial status ran out.  Your unlawful presence, however, only begins when your I-94 expires or there is a finding of a violation of status from the agency.  An application rejected in the mailroom and not based on the merits is not the same thing as a finding of a violation of status.

 

I am a Fulbright Graduate Student (sponsored by U.S. and my government financially). How much is it possible for me to request wavier for 2-year home residence rule if I get a job in academia?

It is notoriously difficult to get a waiver of the home residence requirement when you have a Fulbright.  A route that may succeed is to find an interested government agency (IGA) to sponsor a waiver.  Historically, NASA, the FDA, the military, and many others will support such a waiver.  Each agency has very different rules about when they will sponsor a waiver.  A job in academia is not sufficient for a waiver, but grants/funding/research that fit within the scope of an IGA can support a waiver.

 

 

Does an I-485 petition disqualify me from applying for OPT / STEM?

No. However, you cannot travel as an F-1 with an I-485 pending. The timing of the OPT can get tricky, and if you have already received a work card through the I-485, you may run into confusion or push back from USCIS.  If you have used the work card through the I-485, there may be issues about OPT eligibility to look at.  Your best course of action is to get all your paperwork together and discuss with a lawyer.

 

Can being on OPT allow students to self-petition for a green card or is it required to be on H-1B to do so?

You can file a self-petition while in OPT status. However, filing a petition for permanent residence shows you have immigrant intent. You should not travel in OPT or F-1 if you are filing for residence.

 

I am a minority in my country and in certain portions of my country, people like me aren’t treated well at all. I have not gone back to my country for past three years. I wanted to know how likely it would be for a PhD graduate with F-1 status to apply for permanent residency.

This is very fact specific. Your chances with a self-petition really depend on your field, and your awards/success/publications/endeavor. Put together a very thorough CV. List every award, grant, accomplishment, invitation, you have ever received, and then meet with a lawyer. Do get opinions from different lawyers about the chances of success. 

 

What are the ways one can improve their chances to get a Green Card in a research field? What might be some criteria to look for in a EB1 petition so that one can pursue that route in their research career?

My general advice is to say “Yes.” Say yes to reviewing, editing, serving on committees, being listed in grants, mentoring, collaborating, etc. Make friends and colleagues across the aisle. By that, I mean try to work with people who aren’t just like you, who aren’t from the same country or school or hyper-specialty. Don’t be afraid to introduce yourself to people in your field that you admire. Letters of recommendation are a huge part of the immigration self-petition process. Apply for everything. No grant or award is too small. This includes micro private sector grants.