Found Job after 90 day OPT Deadline

[okhan90 0]

Hello,

So this is my situation. I graduated this past may as an international student on F1. I applied for and was granted OPT. My EAD start date was 7/9/13. Unfortunately I couldn't find a job before the 90 day deadline (90 days after EAD start date). I was planning on leaving but have just been offered my dream job. The problem is I was offered this job 30 days after the deadline. My first question is: has anyone heard of or had experience with this deadline being flexible at all or is it very strict? Another question I have is, if i contact my international advisor, will she terminate my F1? And if I don't contact my international advisor, what happens? Thank you in advance, this whole process is very confusing and we international students should be given more than 3 months to find a job!

[JayJayH 546]

An International Student Advisor (ISA / DSO) has no authority to cancel, terminate or revoke any visa or immigration benefit. They are, however, required by law to report to SEVIS if he/she believes you to be out of status, and he/she cannot endorse any I-20 for which you do not qualify.

A nice DSO would still advise you of what your options are before reporting you as out of status.

The only flexibility in the 90 day unemployment rule I can think of was an exception that was made to it in 2009 / 2010 due to the financial crisis, and the general difficulty in finding employment. That exception voided the 90 day deadline. I doubt that exception is still in effect. You'd have to ask your DSO about that.

Edited November 21, 2013 by Yang-Ja

[okhan90 0]

Thank you for the quick reply. I have a follow up question if you don't mind. If the DSO is not contacted, is the F1 automatically terminated at some point or does it remain in a state of limbo?

Basically I will begin work next week. I am married to a US citizen and if there is no flexibility on the 90 day deadline I was planning on applying for AOS and EAD while working. I know this is not recommended. My question is, will contacting the DSO put me at a higher risk if I begin unauthorized employment? I will begin work next week and my spouse and I are trying to figure out if it is better for me to just begin work and apply for AOS and EAD or to contact the DSO. If the DSO says there is no flexibility we will then apply for AOS and EAD. But will contacting the DSO make things more difficult do you think? I know this kind of behavior is not recommended nor condoned, however, we are both good people with no bad intentions here. I would really appreciate it if you could please help us out. Thank you.

[JayJayH 546]

If you are married to a US citizen, this becomes a very different case.

Normally, when you enter the US on a non-immigrant visa, you will receive an I-94 with a date on it (Recently, the I-94s are not electronic). That date is the last day on which you can be present in the US. After that day passes, you will be considered 'unlawfully present' - a technical term to distinguish you from 'illegal' - someone who entered the US illegally. In practice, they both mean that you are in the US illegally, but they give you slightly different rights.

Students entering on F-1 visas do not get a date on their I-94, but rather "D/S" - Duration of Status, meaning you are lawfully present until you are no longer in student or OPT status. However, there is no automation in this, and whether out of status or not, you are not considered 'unlawfully present' until so determined by an immigration judge. in other words, you are not lawfully present, but you have not yet been determined to be unlawfully present by a judge yet. A limbo basically - You're out of status, but no one has noticed yet, and frankly, no one is looking at this point.

Because you are married to a US citizen, you now qualify for permanent resident status because you are an immediate relative of a US citizen. There is no automation in this either. You have to, as you pointed out, adjust your status from student to permanent resident. This is done by filing what's called an I-130 / I-485 package. You should do this ASAP. Frankly, if you and your wife were planning on living in the US, you should have done this on your wedding night. Or at least the next day. Would have saved you some hassle.

When you file the adjustment of status package, there are two forms which are mandatory - the I-130 (petition for alien relative), and the I-485 (petition to adjust status). In addition, you can file two optional forms, the I-131 (application for advance parole) which is a re-entry permit allowing you to re-enter the US while the AOS is pending, and an I-765 (application for employment authorization). The I-765, when approved, allows you to work while your AOS is pending. AOS altogether takes roughly 6 months. The employment authorization takes roughly 60 - 90 days.

You are currently out of status, and you are not legal to work. However, immediate relatives of US citizens are generally 'forgiven' any overstay or illegal work. Meaning, your AOS will not be denied because you have been out of status or worked illegally. It will only be denied if you at any point lie.

You and your wife should file the I-130 / I-485 package, with an I-765 and ASAP. Within 60 - 90 days, you should receive a new EAD card, which will allow you to work while you wait out the rest of the AOS process.

[Virtuous45 31]

Good counsel Yang-Ja. I do not share his experience, but admire and appreciate the way you took the time to explain his situation carefully to him. Its not me and I understand every word you said, based on how you've explained it. Thank you.

[JayJayH 546]

I'm glad. But I need to correct this typo..

.. you will receive an I-94 with a date on it (Recently, the I-94s are not electronic).