Additional Processing 221g ) at H-1b Stamping

[amit_recw]

I went for a MS in computer science to US in fall 2007, on a F1 visa. I landed a summer (2008) internship and in March 2008 consulted my school international student counselor for advice on what kind of work authorization to apply for. I told her that at this point it was difficult for me to know if I will be able to graduate before summer 2008, to which she advised, that CPT will not work for me and I should go for a pre-completion OPT since it enables me to work irrespective of whether I graduate before or after summer 2008. I graduated before summer 2008 and used my OPT EAD card for the internship and returned back to my home country in Sep 2008 having completed my graduation and internship (I did not have any plans to work in the USA at that time).

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

[Mr. Knowitall]

My preferred approach would be to involve an immigration lawyer, despite the expense, as I believe it will be the best approach to clearing this up without affecting your job.

Will the school counselor back up your story? Do you have anything (e.g., a letter from the counselor) to document the school counselor's statements to you?

[amit_recw]

The school is now using the word "mixup" saying it was nobody's fault and a communication gap. I do not have any proof of the counselor's advice.

The school counselor has offered to speak to the Visa officers and explain to them that the status violation was caused due to a mixup and that I did not know that even a valid EAD did not allow me to work since it was a pre-completion.

How bad is my situation? Please note that I am applying for the H-1B from outside the US and it is not a change of status from F1. I was always enrolled for a full time course of study over my entire MS program, have excellent grades, did the internship on a valid EAD card (which just said EAD and not pre-completion) and immediately returned to India after the internship. Also, the internship was a research project and very closely associated with my Masters (the intent of the internship was not at all monetary - in fact I chose this internship over a couple of other much more monetarily lucrative offers).