F-1 Student Remains in Status after OPT Expires Before October 1st

It is a frequently asked question. There are many F-1 students who are in the Optional Practical Training (OPT) program every year. The OPT program allows the students to stay in the Country and can work legally. An OPT has an expiration date. In theory a student needs to secure an H-1B status before the OPT expires in order to continue to work. What happens if an OPT expires before October 1st of the year, at which H-1B begins for the fiscal year?

The Department of Homeland Security (DHS) in 2008 issued a regulation extending the authorized stay for F-1 students who are currently working under Optional Practical Training (OPT) and their employers have timely filed H-1B petitions on their behalf to change their nonimmigrant status from F-1 to H-1B. What if a student's OPT was valid at the time of filing the H-1B petition, but the OPT will expire before October 1? In that case, the student can remain in good status and can continue to work through September 30th of that year, either the H-1B petition is pending at the USCIS or it's been approved.

The automatic extension of an F-1 student's duration of status and employment authorization is immediately terminated upon in the event of rejection, denial, or revocation of the H-1B petition filed on behalf of the F-1 student. If USCIS denies a pending H-1B petition, the student's F-1 status will decide the continued ability to remain in the U.S. In general, the student will have the standard 60-day grace period (from notification of the denial or rejection of the petition) before they have to leave the United States.

If a student completed his or her post-completion OPT and is in a subsequent valid grace period at the time the cap subject H-1B petition was filed, the student will receive an automatic extension of his or her F-1 duration of status. But the employment authorization is not automatically extended under the circumstance because the OPT would have already expired. The automatically extended period does not reinstate or grant continuing employment authorization during the period.

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