Green Card EB-2: What to Do When OPT Expires During Application Process

Key Takeaways:

1. OPT is a temporary work status for F-1 students, while EB-2 is an employment-based Green Card category for professionals.
2. Options for maintaining legal status when OPT ends before EB-2 approval include STEM extension, H-1B visa, and change of status.
3. To avoid pitfalls, do not overstay OPT or work without authorization and consult an immigration attorney for personalized advice.

Navigating the Transition: When Your OPT Ends During EB-2 Green Card Processing

The journey from a temporary work status to permanent residency in the United States is often filled with uncertainty. For many foreign nationals working on OPT (Optional Practical Training) after their studies, the EB-2 Green Card is a sought-after avenue for obtaining lawful permanent resident status. But what happens if your OPT is nearing its end while your Green Card (EB-2) application is still in progress? This is a common concern, and understanding your options is crucial to maintaining your legal status in the U.S.

Understanding OPT and the EB-2 Green Card

Before delving into what to do when your OPT expires during your Green Card application, it’s essential to understand these two critical immigration statuses:

• The Optional Practical Training (OPT): OPT is a period during which undergraduate and graduate students with F-1 status who have completed or have been pursuing their degrees for more than nine months are permitted by the United States Citizenship and Immigration Services (USCIS) to work for up to one year on a student visa towards getting practical training to complement their education.

• The Employment-Based Second Preference Visa (EB-2 Green Card): The EB-2 visa is a preference category for United States employment-based permanent residency, generally for professionals holding advanced degrees or for individuals with exceptional ability in the sciences, arts, or business.

The Critical Period: When OPT Ends Before EB-2 Approval

It’s a time-sensitive stage when your OPT is about to expire, but your Green Card application is still underway. During such times, maintaining your status is crucial. Here’s what you can consider doing:

Apply for OPT STEM Extension if Eligible

If you have a degree in a STEM field (Science, Technology, Engineering, Mathematics), you might be eligible for a 24-month OPT extension. This extension is specifically for STEM students and can give you the additional time you need for your EB-2 Green Card processing.

Consider Filing for H-1B Visa

Enter the H-1B visa, a non-immigrant visa that allows U.S. companies to employ graduate-level workers in specialty occupations. If applicable, your employer can file an H-1B petition on your behalf. This can be a bridge to keep your legal status while your Green Card application is pending. However, keep in mind that H-1B visas are subject to caps and specific deadlines.

Filing for a Change of Status

In some cases, you may be able to file for a change of status to another non-immigrant visa category. For instance, if you have the opportunity to engage in a different educational program, you might switch to another F-1 status.

Advancing Your Green Card Process: File I-485 for Adjustment of Status

If your EB-2 petition has been approved and your priority date is current, but you haven’t yet applied for an Adjustment of Status (Form I-485), do so immediately. This might allow you to receive an EAD (Employment Authorization Document) and possibly a travel document while you’re waiting for your Green Card.

Apply for an EAD

You may be able to apply for an interim EAD while your Green Card application is being processed. This document lets you continue working legally in the U.S. without violating your status.

Consult an Immigration Attorney

When navigating such complicated situations, it’s often beneficial to consult with an immigration attorney. They can offer personalized advice based on your circumstances and may be aware of options that are not commonly known to the public.

What You Should Avoid During This Transition

It’s essential to avoid any pitfalls during this crucial time. Here are actions you should avoid:

• Do not overstay your OPT: Overstaying can result in unlawful presence, which could have severe repercussions for your Green Card application and future immigration benefits.

• Do not work without authorization: If your OPT expires and you do not have another form of work authorization, you must stop working immediately to avoid violating your status.

Additional Resources and Useful Links

For more detailed information about the OPT and changing your status, always refer to authoritative sources. Here are some recommended websites:

• United States Citizenship and Immigration Services (USCIS)
• USCIS Optional Practical Training Extension for STEM Students (STEM OPT)
• USCIS Employment-Based Immigration: Second Preference EB-2

In conclusion, if you find yourself with an OPT that is expiring while your Green Card (EB-2) is still being processed, know that options do exist. Assess your situation, understand the available pathways, and seek professional advice if necessary. Remember that maintaining legal immigration status should be your top priority to ensure the successful outcome of your Green Card application and your future in the United States.

Still Got Questions? Read Below to Know More

Is it possible to travel outside the U.S. after my OPT expires but I have filed for Adjustment of Status for my EB-2?

Yes, it is possible to travel outside the U.S. after your Optional Practical Training (OPT) expires if you have filed for Adjustment of Status (AOS) for your Employment-Based Second Preference (EB-2) visa category. However, to ensure you can return to the U.S. without issues, you should obtain an Advance Parole (AP) document before traveling. Advance Parole allows individuals who have applied for permanent residency to travel abroad and re-enter the U.S. while their AOS application is pending.

Here are the important points you need to consider:

1. Apply for Advance Parole: Before you travel, you must apply for AP using Form I-131, Application for Travel Document. You can apply for AP at the same time you file your AOS application or after.

   Quote from the USCIS website:

   “If you leave the United States without an advance parole document while your Form I-485 is pending, we will consider your Form I-485 abandoned.”

2. Wait for Approval: Do not leave the country until you receive your AP document. Traveling outside the U.S. without AP while your AOS application is pending may lead to the abandonment of your application.

3. Understand the Risks: Keep in mind that even with AP, re-entry to the U.S. is at the discretion of the border officers, and there is no guarantee of re-admission, especially if circumstances have changed.

Finally, it’s always advisable to consult with an immigration attorney before making travel plans. They can provide you with the most up-to-date advice tailored to your specific situation.

For more details and to file your application, visit the official U.S. Citizenship and Immigration Services (USCIS) website – Form I-131, Application for Travel Document.

What do I do if my H-1B visa application is not selected in the lottery before my OPT expires?

If your H-1B visa application is not selected in the lottery before your OPT (Optional Practical Training) expires, you still have several options to consider:

1. Cap-Gap Extension: If you are on OPT and your employer submitted an H-1B petition for you, you may be eligible for a cap-gap extension. This automatically extends your OPT authorization to work in the U.S. until September 30 of that year, providing your H-1B petition is filed on time and requests a change of status.

2. Apply for Other Work Visas: Consider other types of work visas such as L-1 for intra-company transferees, O-1 for individuals with extraordinary ability, or TN visas for Canadian and Mexican nationals under the USMCA (United States-Mexico-Canada Agreement).

3. Change of Status: You might explore the possibility of changing your status to a different non-immigrant status, for example, becoming a full-time student with an F-1 visa.

4. Seek Employer Sponsorship for the Next H-1B Lottery: You can discuss with your employer the possibility of re-applying for the H-1B visa in the next fiscal year’s lottery.

5. Depart U.S. and Work from a Different Location: Work with your employer to explore whether you can perform your job remotely from outside the United States.

It’s important to plan ahead and discuss these options with an immigration attorney to ensure continuous lawful status in the U.S. Make sure to act before your current OPT expires to maintain your legal status.

For Cap-Gap extension information, visit the official U.S. Immigration and Customs Enforcement (ICE) page here:
https://www.ice.gov/sevis/practical-training

For other work visa options, you can learn more from the U.S. Citizenship and Immigration Services (USCIS) website here:
https://www.uscis.gov/working-in-the-united-states/temporary-nonimmigrant-workers

Consulting with a qualified immigration attorney can provide personalized advice and guidance tailored to your specific situation.

Can I start a new college program after my OPT ends to stay in the U.S. while waiting for my EB-2 Green Card?

Yes, you can start a new college program after your Optional Practical Training (OPT) ends as a way to maintain your legal status in the U.S. while you are waiting for your Employment-Based Second Preference (EB-2) Green Card application to be processed. When considering this path, keep the following points in mind:

1. Maintain Status: Enrolling in a new academic program allows you to maintain your F-1 student status. Remember to:
   • Apply and receive acceptance from the school before your OPT expires.
   • Inform your current school’s international student office about your intentions so that they can transfer your Student and Exchange Visitor Information System (SEVIS) record to the new institution.
2. SEVIS Transfer and I-20: Ensure that the new college issues you a new I-20 form for the new program. The SEVIS transfer process must be done on time, and your F-1 status remains valid through this period.

3. New I-20 and Program: Make sure that the program you are enrolling in is eligible for F-1 student status and that your new I-20 reflects the start date of your new program that is before the expiration of your current OPT.

It’s important to note that starting a new program of study isn’t just a way to extend your stay—you should have a genuine interest in the program. Moreover, this does not directly impact your EB-2 application, but it allows you to legally remain in the U.S. while your application is pending.

For specific guidance, you can always refer to the U.S. Citizenship and Immigration Services (USCIS) official website USCIS and the U.S. Department of State – Student Visa Student Visa Page for comprehensive information about student visas and status. It is also a good idea to consult with the Designated School Official (DSO) at your institution or an immigration attorney for tailored advice based on your individual circumstances.

If my OPT is almost up and I’m not eligible for a STEM extension, what are my options to stay legally in the U.S.?

If your Optional Practical Training (OPT) is nearing its end and you are not eligible for a STEM extension, there are several options you may consider to stay legally in the U.S.:

1. H-1B Visa: The H-1B visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations. If you have a bachelor’s degree or higher in a field related to a specialty occupation, you might find an employer willing to sponsor you for an H-1B visa. The H-1B visa has an annual cap, so be aware of the application timeline and lottery system.
   • Further information can be found on the U.S. Citizenship and Immigration Services (USCIS) H-1B Page.
2. Other Work Visas: There are various other work visa categories like L-1 visas for intracompany transferees, O-1 visas for individuals with extraordinary ability, and others depending on your specific circumstances and qualifications.
   • For other types of work visas, visit Work Visas | USCIS.
3. Educational Pursuits: You may decide to continue your education in the U.S. by applying for and enrolling in another academic program. In this case, you might be eligible to change your status to an F-1 student visa.
   • Details are available at Study & Exchange | U.S. Department of State.

It is crucial to plan ahead since changes in immigration status may have processing times and deadlines. Always consult with your Designated School Official (DSO) or an immigration attorney to help navigate the transition and ensure you maintain legal status.

Remember, “If you wish to remain in the United States longer than authorized, you will need to apply to change your status, or you can apply to be readmitted to the United States in a different status.” – as stated by USCIS. For further guidance, refer to the official USCIS Change of Status page. It is crucial not to overstay your authorized period of OPT as it can negatively impact your ability to remain in or return to the United States.

How long before my OPT ends should I apply for an EAD to make sure there’s no gap in my employment authorization?

To make sure there’s no gap in your employment authorization when transitioning from Optional Practical Training (OPT) to an Employment Authorization Document (EAD), it’s essential to plan ahead. You should apply for your new EAD before your current OPT authorization expires. Under normal circumstances, the U.S. Citizenship and Immigration Services (USCIS) advises applicants to apply for their new EAD as early as 90 days before their OPT expiration date.

Here’s a simple list to guide you through the process:

1. 90 Days Before OPT Expiry: Submit your EAD application to USCIS.
2. During OPT: Maintain employment as per OPT rules and keep an eye on your EAD application status.
3. After OPT Expiry: You may be eligible for a 180-day automatic extension of work authorization if you’ve applied for a new EAD in certain categories and your OPT EAD has not yet been adjudicated.

Keep in mind that processing times for EAD applications can vary, and to avoid any issues, it is best to apply as soon as the appropriate window allows. You can check current processing times on the official USCIS website.

For accurate and complete details about EAD renewals and to stay up-to-date with the latest requirements, always refer to the official U.S. Citizenship and Immigration Services (USCIS) website: USCIS – Work Authorization

Remember, failure to maintain continuous employment authorization could have repercussions on your immigration status, so it is crucial to stay proactive in your renewal application.

Learn Today:

Glossary or Definitions:

1. Optional Practical Training (OPT): OPT is a period during which undergraduate and graduate students with F-1 status who have completed or have been pursuing their degrees for more than nine months are permitted by the United States Citizenship and Immigration Services (USCIS) to work for up to one year on a student visa towards getting practical training to complement their education.

2. Employment-Based Second Preference Visa (EB-2 Green Card): The EB-2 visa is a preference category for United States employment-based permanent residency, generally for professionals holding advanced degrees or for individuals with exceptional ability in the sciences, arts, or business.

3. STEM Extension: A 24-month extension of the OPT available to individuals who have a degree in a STEM field (Science, Technology, Engineering, Mathematics). This extension can provide additional time to engage in practical training and allow for the continuation of EB-2 Green Card processing.

4. H-1B Visa: A non-immigrant visa that allows U.S. companies to employ graduate-level workers in specialty occupations. It can serve as a bridge to maintain legal status while an individual’s Green Card application is pending. H-1B visas are subject to caps and specific deadlines.

5. Change of Status: The process of transitioning from one non-immigrant visa category to another. For example, switching from F-1 status to another non-immigrant visa category if an opportunity arises to engage in a different educational program.

6. Adjustment of Status (Form I-485): The process of applying for lawful permanent resident status (Green Card) while remaining in the United States. Individuals who have an approved EB-2 petition and a current priority date can file Form I-485 to adjust their status and potentially receive an Employment Authorization Document (EAD) and a travel document while waiting for their Green Card.

7. Employment Authorization Document (EAD): An authorization document issued by USCIS that allows an individual to work legally in the United States. Individuals may apply for an interim EAD while their Green Card application is being processed.

8. Immigration Attorney: An attorney who specializes in immigration law and can provide legal advice and guidance on immigration matters, including navigating complex situations, understanding available options, and ensuring compliance with immigration laws.

9. Unlawful Presence: A period of time during which an individual remains in the United States without legal authorization. Overstaying one’s authorized period of stay, such as the expiration of OPT, can result in unlawful presence and have severe repercussions for future immigration benefits, including Green Card applications.

10. Authorization to Work: The permission granted by USCIS to an individual to engage in employment in the United States. Individuals must have valid work authorization to work legally and avoid violating their immigration status.

Please note that these definitions are provided to enhance understanding of the specialized terminology used in discussions of immigration and should not serve as official legal advice. It is recommended to consult with an immigration attorney for personalized and accurate advice based on individual circumstances.

If you’re facing the nerve-wracking situation of your OPT ending during your EB-2 Green Card processing, fret not! There are strategies to maintain your legal status and keep the immigration journey on track. From applying for STEM extensions to exploring alternative visa options, the key is to stay informed. Remember, seeking personalized advice from an immigration attorney can be immensely helpful. And if you want to delve deeper into this topic or any other immigration queries, head over to visaverge.com for a wealth of valuable information and guidance. Happy exploring, folks!

This Article in a Nutshell:

When your OPT ends during EB-2 Green Card processing, options exist. Apply for STEM extension, file for an H-1B visa or change of status, advance your Green Card process with Form I-485, apply for an EAD, and consult an immigration attorney. Avoid overstaying and working without authorization. Prioritize maintaining legal status.