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I am caught in a strange situation with my H-1B application and need some advice in the matter.
I went to a top 10 graduate school in the US for a MS in Computer Science in Fall 2007 semester. I landed an internship for summer 2008 and went to my DSO in March 2008 for advice on what should be the appropriate work authorization for me to be able to do the internship. I explained to her that it was too early to exactly tell when I will be able to graduate – it could be in spring 2008 or could take another semester and extend till winter 2008. I also told her that I just wanted to do an internship in the US and had no plans of working in the US after graduation because I had to return to India for personal reasons. The school counselor said that CPT would not be an option for me because I would not be able to use it for the internship if I graduate early (spring 2008). As per her suggestion I applied for OPT which she said would allow me to do the internship regardless of whether I graduate before or after the internship. Things went well on the academic front and I ended up completing all my coursework as well as the Thesis work by spring 2008 – i.e. I graduated in spring 2008. I received my EAD card from USCIS which had validity from June 2008 – December 2008 (I had applied for 6 months only because I was sure I would be only doing the internship and would not work in the USA after my graduation). I did my internship in summer 2008 and returned back to India at the end of the internship as planned earlier.
Now I have a job offer from a Fortune 50 systems software product company in the USA and my employer filed a H-1B petition for me for FY2010 which was approved by USCIS. I went for H-1B stamping to Hyderabad on August 20, 2009 and was issued a 221g for additional administrative processing. The Visa officer did not tell me the reason for the 221g just saying that they needed to do some additional processing and I should just wait for the consulate to contact me. The interview was very brief and at one point the VO asked me if I had ever dropped a semester during my MS (computer science) in US when I was there on a F1 visa to which I replied NO. She subsequently asked if I had graduated early to which I said YES and she replied that I should have cleared up my early graduation with the school. Then she issued me a white 221g for AAP. When I asked the officer if there was anything to be done from my side, she said NO and that I should just wait for the consulate to contact me and that I may NOT get the visa within one week.
Because of the Visa officer’s question about the dropped semester I suspected that the 221g was because of some issue with my SEVIS record and I immediately contacted my school. What I learned from the school official was shocking – my SEVIS record said that I was in violation of my F1 status, the exact text being “OTHERWISE FAILING TO MAINTAIN STATUS - student graduated 6/13/2008. Submitted a letter for pre-completion OPT from 06/17/2008 to 12/12/2008. Student is out of status and in violation of his F-1 obligations since he is not an active student while on Pre-completion OPT.”
The school officer told me that I had applied for a “pre-completion” OPT which was not valid after my graduation and hence my EAD card was not valid for the internship that I did in the US. This had resulted in me being out of F1 status. This is completely contrary to what I had been told when I applied for the OPT – I was told that the pre-completion OPT allowed me to work even after I graduated. In fact that was the only reason that I took the OPT and not CPT which has a much lower fee compared to OPT and also one does not have to wait for 90 days for the work authorization !!. Was there some change in USCIS laws which rendered my EAD invalid for the internship or did I get wrong advice from the school official in first place and pre-completion OPT was the wrong work authorization choice for my purpose. Please note that my EAD card only says “Student : Optional Practical Training” – it does not even mention anything about pre-completion or post-completion.
Was I really out of status or is it just a mistake that can be corrected? Please advice on what options do I have at this point because my H-1B seems to be held up because of this mixup in my SEVIS status and any further delay could result in termination of my job offer. I have excellent academic records (3.97 GPA, 2 research publication in the topmost conference in my field and one US patent) and extensive experience in software development (worked for 5 years as a software developer before going for my MS in the US). Also, my employer is one of the largest software companies in the USA and there are no chances of the consulate doubting them. Seems like my SEVIS status is the reason for AAP on my H-1B.
I went to a top 10 graduate school in the US for a MS in Computer Science in Fall 2007 semester. I landed an internship for summer 2008 and went to my DSO in March 2008 for advice on what should be the appropriate work authorization for me to be able to do the internship. I explained to her that it was too early to exactly tell when I will be able to graduate – it could be in spring 2008 or could take another semester and extend till winter 2008. I also told her that I just wanted to do an internship in the US and had no plans of working in the US after graduation because I had to return to India for personal reasons. The school counselor said that CPT would not be an option for me because I would not be able to use it for the internship if I graduate early (spring 2008). As per her suggestion I applied for OPT which she said would allow me to do the internship regardless of whether I graduate before or after the internship. Things went well on the academic front and I ended up completing all my coursework as well as the Thesis work by spring 2008 – i.e. I graduated in spring 2008. I received my EAD card from USCIS which had validity from June 2008 – December 2008 (I had applied for 6 months only because I was sure I would be only doing the internship and would not work in the USA after my graduation). I did my internship in summer 2008 and returned back to India at the end of the internship as planned earlier.
Now I have a job offer from a Fortune 50 systems software product company in the USA and my employer filed a H-1B petition for me for FY2010 which was approved by USCIS. I went for H-1B stamping to Hyderabad on August 20, 2009 and was issued a 221g for additional administrative processing. The Visa officer did not tell me the reason for the 221g just saying that they needed to do some additional processing and I should just wait for the consulate to contact me. The interview was very brief and at one point the VO asked me if I had ever dropped a semester during my MS (computer science) in US when I was there on a F1 visa to which I replied NO. She subsequently asked if I had graduated early to which I said YES and she replied that I should have cleared up my early graduation with the school. Then she issued me a white 221g for AAP. When I asked the officer if there was anything to be done from my side, she said NO and that I should just wait for the consulate to contact me and that I may NOT get the visa within one week.
Because of the Visa officer’s question about the dropped semester I suspected that the 221g was because of some issue with my SEVIS record and I immediately contacted my school. What I learned from the school official was shocking – my SEVIS record said that I was in violation of my F1 status, the exact text being “OTHERWISE FAILING TO MAINTAIN STATUS - student graduated 6/13/2008. Submitted a letter for pre-completion OPT from 06/17/2008 to 12/12/2008. Student is out of status and in violation of his F-1 obligations since he is not an active student while on Pre-completion OPT.”
The school officer told me that I had applied for a “pre-completion” OPT which was not valid after my graduation and hence my EAD card was not valid for the internship that I did in the US. This had resulted in me being out of F1 status. This is completely contrary to what I had been told when I applied for the OPT – I was told that the pre-completion OPT allowed me to work even after I graduated. In fact that was the only reason that I took the OPT and not CPT which has a much lower fee compared to OPT and also one does not have to wait for 90 days for the work authorization !!. Was there some change in USCIS laws which rendered my EAD invalid for the internship or did I get wrong advice from the school official in first place and pre-completion OPT was the wrong work authorization choice for my purpose. Please note that my EAD card only says “Student : Optional Practical Training” – it does not even mention anything about pre-completion or post-completion.
Was I really out of status or is it just a mistake that can be corrected? Please advice on what options do I have at this point because my H-1B seems to be held up because of this mixup in my SEVIS status and any further delay could result in termination of my job offer. I have excellent academic records (3.97 GPA, 2 research publication in the topmost conference in my field and one US patent) and extensive experience in software development (worked for 5 years as a software developer before going for my MS in the US). Also, my employer is one of the largest software companies in the USA and there are no chances of the consulate doubting them. Seems like my SEVIS status is the reason for AAP on my H-1B.
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