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Phaedra
05-30-2009, 01:54 PM
Hi,
I am on OPT till August 2009.
However my F1 visa expires May 30 2009.
Also I do not have a job at present.

Does my OPT override the F1 visa expiration?Can I stay legally in the US till August even if I do not have a job?

Worried,
P

raysaikat
05-30-2009, 03:22 PM
Hi,
I am on OPT till August 2009.
However my F1 visa expires May 30 2009.
Also I do not have a job at present.

Does my OPT override the F1 visa expiration?Can I stay legally in the US till August even if I do not have a job?

Worried,
P

The visa stamp on your passport does not determine your status once you are inside USA. Visa stamp on the passport is used just for entering the US. It is like a movie ticket. You will need the visa stamp on the passport only if you go out and need to come back again. The expiry date on the visa stamp simply means you cannot use that stamp to enter US after that date.

Once you are inside US, usually it is I-94 that determines how long you can stay. In the case of F1, usually I-94 says D/S, which means "Duration of Status" --- i.e., as long as your F1 status holds according to I-20, you are good. OPT is a part of F1. So as long as you do not stay beyond the date of OPT expiration, you are good.

Phaedra
05-30-2009, 08:45 PM
Thanks a lot for the information.
I am just concerned about the fact that I do not have a job and have been unemployed for more than the 90 day OPT period. I'm not sure what my status is,given such a scenario.
Thanks!

raysaikat
05-31-2009, 12:40 AM
Thanks a lot for the information.
I am just concerned about the fact that I do not have a job and have been unemployed for more than the 90 day OPT period. I'm not sure what my status is,given such a scenario.
Thanks!

You are allowed a maximum of 90 days of unemployment during the 12 month OPT period. After that, you are accumulating out of status days. I do not know what is the penalty for out of status days --- typically more than 180 days of out of status days are bad.

http://edocket.access.gpo.gov/2008/E8-7427.htm
2. Periods of Unemployment During OPT
DHS regulations currently define the period of an F-1 student's
status as the time the student is pursuing a full course of study at an
SEVP-certified school or engaging in authorized post-completion OPT. 8
CFR 214.2(f)(5). They do not specify how much time the student may be
unemployed, making it difficult to determine when an unemployed student
on post-completion OPT violates the requirements for remaining in F-1
status. As status during OPT is based on the premise that the F-1
student is working, there must be a limit on unemployment, just as the
F-1 student's period in school is based on the premise that he is
actually pursuing a full-time course of study, and there are limits on
how often the student can reduce his course load. An F-1 student who
drops out of school or does not pursue a full-time course of study
loses status; an F-1 student with OPT who is unemployed for a
significant period should similarly put his status in jeopardy.
Therefore, this rule specifies an aggregate maximum allowed period of
unemployment of 90 days for students on 12-month OPT. This maximum
period increases by 30 days for F-1 students who have an approved 17-
month OPT period. In addition to clarifying the student's status, this
measure allows time for job searches or a break when switching
employers.

http://www.ice.gov/sevis/updates_postcompletion_opt.htm#_Toc174419546
4.9. Unemployment time

The time spent without a qualifying job during post-completion OPT. Except as noted in the section on what counts as time unemployed, each day that the student is not employed in a qualifying job, is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT including those with a cap gap extension, except that students with a STEM OPT extension are given an additional 30 days of unemployment time for a maximum of 120 days.

Phaedra
05-31-2009, 01:28 AM
Thanks a lot, Raysaikat.
I appreciate the response.Here are a few of my immidiate thoughts....

1)I have been unemployed for a little over 180 days now.The key question is what is the penalty for remaining in the country for doing so?
This is the year when most people actually did NOT get jobs...I am guessing there are a lot of people in my position.

2)How does USCIS actually track who is employed and who is not?

3)If I were to catch the next flight back home (India), will I face problems while leaving the US/or entering India?

4)Can I get a letter from a firm/company stating that I was doing an unpaid internship with them?(which will be counted towards the employment period)Are there any repurcursions for the company?

Any thoughts/opinions wouldbe most appreciated.
Thanks!

raysaikat
05-31-2009, 02:18 AM
Thanks a lot, Raysaikat.
I appreciate the response.Here are a few of my immidiate thoughts....

1)I have been unemployed for a little over 180 days now.The key question is what is the penalty for remaining in the country for doing so?
This is the year when most people actually did NOT get jobs...I am guessing there are a lot of people in my position.

There are two things: (i) out of status, (ii) unlawful presence. Unlawful presence is a narrower concept (a subset of out of status) with severe consequences: a person who has been unlawfully present for 180 days to 365 days is barred for 3 years from reentering; a person who has been unlawfully present for more than 1 year is barred from reentering for 10 years.

It is a complicated matter to determine if your "out of status" days have become "unlawfully present" days. I am not qualified to make that judgment: you need to ask an immigration lawyer, or your school's International Student's Office. I suspect that you are merely out of status and not yet unlawfully present:

In this document, "out of status" is defined as what I am referring to as "unlawful presence".
212(a)(9)(b) Out of Status Penalty Law: This section of law provides [snip]

* For purposes of this provision of the law only, a person who has violated the terms of their status, but who has not remained in the US past their fixed status expiration date as shown on their papers will not be considered to be “out of status” unless and until a government agency has officially informed them that they are “out of status.” In other word, it is possible for to be “out of status” for purposes of filing an extension or change of status in the US, but not be “out of status” for purposes of this penalty provision of the law.
[snip...]
It is not clear to me what should be regarded as the "fixed status expiration date" in your case. In the best case, that is the time your 12 month OPT expires and from that time you will start to accrue unlawfully present days. In the worst case, that is the time when your 90 days of OPT period expired, which means that you have already accumulated more than 180 days of unlawful presence and you will be barred from reentering US for 3 years.

Again, if you need to know this, please consult an immigration lawyer. Your school's international students' office should also be able to help you. But in my experience, they are not able to deal with complex situations and usually gives too conservative an answer that will save their behind should there be any complications. Once one staff of my school's ISSO asked me to apply for CPT for working in the UK! Thankfully the actual advisor was more knowledgeable. However, the advisors are not immigration lawyers.


2)How does USCIS actually track who is employed and who is not?

They may have multiple methods if they actually launch an investigation, but usually they will check their records the next time you apply for a VISA, inside or outside US. E.g., if you want to apply for H1-B, you will have to show that you are not out of status.



3)If I were to catch the next flight back home (India), will I face problems while leaving the US/or entering India?


Nope. You can merrily exit US. Entering home country of course is in the jurisdiction of the authority of your home country. Assuming you are an Indian citizen, they cannot prevent you from entering.

I.e., you will have no problem at all.



4)Can I get a letter from a firm/company stating that I was doing an unpaid internship with them?(which will be counted towards the employment period)Are there any repurcursions for the company?

Any thoughts/opinions wouldbe most appreciated.
Thanks!

My only suggestion is not to walk the path of doing fraudulent activities for staying in the US. If that means going back to India, please do so. Perhaps you will have an equally bright career in India.