Filing for STEM OPT Extensions During Cap Gap Extension:
A Critical Back-up Strategy for H-1B Pending Beneficiaries
Author: Jian Joe Zhou, Attorney at Law
In general, a STEM OPT extension must be filed prior to the expiration date shown on a beneficiary’s first 12-month postgraduate OPT EAD card. However, in 2016, U.S. Citizenship and Immigration Services (USCIS) instituted a regulatory change, allowing those who qualify for a STEM OPT extension to file an extension application during the Cap Gap period, even if the expiration date on their 12-month postgraduate OPT card has already passed. Note that, for qualifying H-1B pending beneficiaries this year, USCIS must receive your STEM OPT extension application before Oct. 1, 2017.
The reasons and benefits for filing a STEM OPT extension include:
After Sept. 30, 2017, the Cap Gap employment authorization for H-1B pending beneficiaries will end, and you will be unable to work even with a still-pending H-1B application. A timely filed STEP OPT extension, with proper receipt notice, will allow you to continue working during your H-1B application’s pendency after Sept. 30, 2017.
If your H-1B application is eventually denied, then your STEM OPT will allow you to work for another two years, giving you ample time to consider your next steps in the U.S.
Filing for a STEM OPT extension will not impact your pending H-1B application. If your pending H-1B is approved, you will be in H-1B status, and no longer in STEM OPT (i.e. if you requested a change of status to H-1B).
It is critical that you work with your school closely and obtain an endorsed I-20, which is required for a STEM OPT filing.
Again, note that your Form I-765 STEM OPT extension application must be received by USCIS by Sept. 30, 2017, at the latest.
To qualify for a STEM OPT extension, you must:
Be enrolled in a qualifying STEM major academic program;
Have a valid OPT EAD card, or be in the valid Cap Gap extension period;
Have a job offer from a qualifying e-verify employer;
Obtain your school’s properly endorsed Form I-20; and
Follow all filing procedures, include all requisite supporting documentation, and pay the correct filing fees.
Consider the hypothetical cases below to understand why filing for a STEM OPT extension during H-1B pendency is advised.
Mr. Tom Wang is in a STEM major academic program, and his 12-month postgraduate OPT expired July 1, 2017. His employer filed an H-1B application, which is currently pending with USCIS. At present, Mr. Wang is in the valid Cap Gap extension period, and he has worked properly with his school during this time to file for STEM OPT. He submitted his application on Sept. 5, and has since received the receipt notice.
Mr. Wang will be able to continue to work after Oct. 1, 2017, by virtue of having a STEM OPT application pending. If his STEM OPT is approved, he will be given two additional years of OPT. If his H-1B is approved at any point, whether before or after his STEM OPT is approved, Mr. Wang will be in H-1B status (assuming his H-1B application requested for a change of status). His STEM OPT filing does not impact his H-1B.
Ms. Jane Doe’s 12-month OPT period ended on June 15, 2017. She has a cap-subject H-1B application that is currently pending. At her university, Ms. Doe’s major falls under qualifying STEM academic programs, and she has properly worked with her school to obtain Cap Gap extension employment authorization until Oct. 1, 2017, on the basis of her pending H-1B. In early September, Ms. Doe’s H-1B received a tough RFE. Soon thereafter, Ms. Doe’s attorney advised her to timely file for a STEM OPT extension; USCIS received her STEM OPT application at the end of September.
Once Ms. Doe receives the STEM OPT extension receipt notice, she will be authorized to work during her STEM OPT application’s pendency. If USCIS approves her H-1B, then Ms. Doe will be in H-1B status. Otherwise, assuming her STEM OPT was properly filed and is approved, she will be able to work under STEM OPT for the next two years.
About the Author:
Attorney Jian Joe Zhou is a co-managing partner at Zhang & Associates. With more than 17 years of dedicated practice in the fields of employment and business immigration, Joe is an expert on several complex immigrant and nonimmigrant visa issues, including the PERM (EB-2 and EB-3), EB-1, NIW, H-1B, L, and F visa categories. Joe may be reached at firstname.lastname@example.org.
Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017
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