Students
In the dynamic landscape of immigration and employment, international students on F-1 visas in the United States often face uncertainties, particularly when transitioning to H-1B nonimmigrant status. What happens if a student, approved for a change to H-1B status, is laid off or terminated by their H-1B employer before officially obtaining the new status? This scenario introduces a series of steps and considerations for students to ensure a smooth transition and avoid disruptions in their Optional Practical Training (OPT).
Understanding the Scenario
If a student has been approved to change their status to H-1B but faces termination before the effective date of the new status, there are key measures they can take. This situation is not uncommon, and the United States Citizenship and Immigration Services (USCIS) provides guidelines to address such challenges.
Retrieving Unused OPT
Firstly, if the student possesses an unexpired Employment Authorization Document (EAD) issued for post-completion OPT/STEM OPT, they can retrieve any unused OPT. Despite the termination or layoff, the student can remain in F-1 status and continue utilizing their OPT using the existing, unexpired EAD.
Initiating USCIS Withdrawal Request
The student must ensure that USCIS receives a withdrawal request from the H-1B petitioner before the scheduled change of status takes effect. Otherwise, the change of status to H-1B will occur automatically, in which case the student will not be able to utilize their remaining OPT. Once the withdrawal is initiated, the student should provide their Designated School Official (DSO) with a copy of the USCIS acknowledgment of withdrawal (notice of revocation).
DSO Involvement and SEVIS Data Fix
The DSO plays a pivotal role in this process. Once the withdrawal is confirmed, the DSO may contact the Student and Exchange Visitor Information System (SEVIS) helpdesk to request a data fix. This fix is essential to prevent any erroneous termination in SEVIS and ensures the student’s continuous compliance with F-1 status regulations.
Addressing USCIS Response Time
It’s essential for the student to note that if USCIS does not receive the withdrawal request before the scheduled change of status date, they will need to take additional steps. This includes ceasing work, filing Form I-539 (Application to Extend/Change Nonimmigrant Status) to request F-1 status, and waiting for the approval of the change of status request before resuming OPT employment.
Continuing OPT Employment during SEVIS Data Fix
In certain situations, the student may be able to continue working with their approved EAD while the data fix in SEVIS is pending. This is contingent on several factors:
- The H-1B employer withdrew the H-1B petition before October 1st.
- The student finds employment that aligns with their OPT.
- The period of OPT is still unexpired, indicating that the student wasn’t utilizing the “cap-gap” provision.
Conclusion
While facing termination or layoff before an H-1B change of status, international students should be proactive in adhering to USCIS guidelines and working closely with their DSO. Timely communication, withdrawal requests, and SEVIS data fixes are crucial steps to ensure a smooth transition, allowing students to continue their career pursuits without unnecessary disruptions. By navigating these challenges diligently, F-1 students can uphold their legal status and make informed decisions about their future in the United States.
If you have any questions regarding the above please contact PLG Partner Chris Prescott at cprescott@patellegal.com.