F-1 student consult regarding unlawful presence
Sep 01, 2018OUTCOME: The student was granted his H-1B status.
Recently a student called my office asking to talk to the “F-1 attorney.” The student was employed using his STEM Optional Practical Training (OPT) and his employer was seeking to change his status to ... H-1B for continued employment. Last year their H-1B petition was accepted in the H-1B lottery only to be denied for various reasons. In the denial USCIS stated that he was out of status for having more than 90 days of unemployment. The denial shocked him and he was concerned about how the new policy on unlawful presence would affect him. His company filed a new H-1B petition this year which was selected in the H-1B lottery. He feared that last year’s decision and the new policy would cause the petition to be denied again. Re-entry and visa applications may be denied based on errors or outdated information in SEVIS. It is crucial that students ensure their SEVIS profile is current, reflecting their current address, location of work and any travel out of the country. This is what happened to the panicked F-1 student who called my office. Reading through USCIS’s decision from his first H-1B application I saw that they had assumed he had 45 days of unemployment due to missing pay-stubs and employment records. But I also saw that the student had left the country, drawing a clean slate on his unlawful presence accrual upon his return. The decision would not hold up upon review.
