SEVIS status led to H-1B 221g AAP - please advise

[amit_recw]

In FY2010 a US based Fortune 50 software product company filed an H-1B petition for me, 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 and the reason cited was that my SEVIS record said I had failed to maintain my F1 status in the US. When I contacted my designated school official, I was told that since I had applied for a pre-completion OPT, its validity ended with my graduation and was not valid for the internship - thus my SEVIS record indicated that I had failed to maintain my 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 !. 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.

Here’s the text from my SEVIS record as sent by my school counselor – “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.”

Was I really out of status or is it just a mistake that can be corrected? Can someone please advise what are my options at this stage, because this issue is creating problems with my H-1B visa issuance.

Sequence of events with dates:

Sep 27, 2007 – Start of Masters program in US
Mar 15, 2008 – Applied for pre-completion OPT from June 2008 to Dec 2008
Jun 13, 2008 – Graduated
Jun 16, 2008 – Received EAD card (validity from June 17, 2008 to Dec 12, 2008)
Jun 24, 2008 – Start of internship
Sep 12, 2008 – End of Internship
Sep 15, 2008 – Departed from US
Aug 20, 2009 – Appeared for H-1B visa interview and was issued 221g for additional administrative processing

[txh1b]

I read through your entire post. This is what I would like from you. A short concise time line of events in the US from your entry through your leaving with dates to analyze this better.

Your dates all all in what you wrote but it is hard to see.

In short, if you did not overstay for more than 6 months due to the error, you will be fine. If not, there is a 3 year ban. If you overstayed for more than 1 year, you have a 10 year ban.

[amit_recw]

SEVIS status led to H-1B 221g AAP - please advise

Thanks for the response.

Following is the sequence of events with dates:

Sep 27, 2007 – Start of Masters program in US
Mar 15, 2008 – Applied for pre-completion OPT from June 2008 to Dec 2008
Jun 13, 2008 – Graduated
Jun 16, 2008 – Received EAD card (validity from June 17, 2008 to Dec 12, 2008)
Jun 24, 2008 – Start of internship
Sep 12, 2008 – End of Internship
Sep 15, 2008 – Departed from US
Aug 20, 2009 – Appeared for H-1B visa interview and was issued 221g for additional administrative processing


Regards,
Amit

[txh1b]

You have around 3 months of overstay and unauthorized employment. You will be fine but have to disclose this from now on on visa applications and any other immigration related forms. Your 221g may be due to your name too.

You just have to wait for a few more days and you will get the visa.

[amit_recw]

SEVIS status led to H-1B 221g AAP - please advise

Thanks again for the response.

Can you please advise if there is any way to fix my status violation? I has a valid EAD during my employment - I was unaware of it being a pre-completion OPT (the EAD card just said OPT and not pre-completion). Also, I did not use it before my graduation and only after it for the period of the internship.

[txh1b]

No, there isn't anything that I am aware of that will fix your problem. Not knowing the law isn't an excuse and it is clear as per the the law that pre-completion OPT is different from the post graduation one.

[amit_recw]

Got the Visa today

I was the sent my passport today with the Visa

Thanks for your inputs tx1b.