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What happens if OPT gets rejected because there is no I-20 OPT? Can I appeal? Am I out of status?

San Francisco, CA |

I sent in my papers just a few days before the 60 days deadline after graduation . I waited because I do not have my I - 20 OPT . My school had an admin error . They rushed to fix the error but the correction still haven't come in From SEVIS , therefore no I20 OPT . My DSO wrote a letter to USCIS explaining the error in my packet . And when the correction for my I20 comes in , they will issue the I20 OPT and then I will send it . But till now the correction from SEVIS and I - 20 OPT still haven't come in . I haven't heard anything from USCIS or my DSO . I graduated - and am past the 60 days since graduation . Am I out of status ? I have an offer and my employer is planning to file my H1B in April , but since I graduated over 60 days - what happens if my OPT gets rejected because of the error

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Attorney answers 3


You express a valid concern for your future thinking of a possible plan of action in case of a denial. Please consider bringing the entire file with all communications and corrections to a practicing immigration attorney for an appropriate legal assessment.

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Worst case and your OPT is denied you will fall out of status, but you will not collect unlawful presence (F-1 and J-1 student visa holders do not collect unlawful status unless they are given a formal finding from USCIS or an Immigration Judge). This means that your employer can still file the H-1B in April, but you may not be able to work for them until the H-1B becomes valid on October 1, 2013. You will also need to leave the country and go through visa stamping before you can start on this date. But this is about as bad as it gets, as long as there are no other issues.

I strongly suggest finding an immigration lawyer with a strong background in H-1B petitions to guide you and your employer through the process.

Best case, your OPT will be approved and you can work on the OPT until October 1 when you will move to H-1B.

The bottom line is you need a lawyer, but it should not cost you or your employer very much. At worst some legal fees and plane ticket home for visa stamping and a plane ticket back to start on the H-1B in October.

(513) 549-4420 - Attorney Christopher M. Pogue, Esq., I cannot provide legal advice or recommendations unless you retain our law firm to represent you. No attorney/client relationship will begin until you sign a representation agreement and make a retainer payment to open a case with us.



So even if I am over 60 days past graduation with no I-20 or anything - I am not collecting unlawful presence? So for example if the OPT gets denied, would I have to leave right away or do I have a few months?



Or I can stay until I have to leave just to get my stamp for the visa without having unlawful presence? Because if so, that's great.


I agree with my colleagues.

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.