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f1studentOPT

221G for visa renewal while on OPT - How does it affect OPT unemployment allowance?

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Hello,

 

I had my F1 visa renewal interview in Toronto on the in September 2013.

221G status was given during this interview and I have been waiting for my case to clear since then.

 

The problem is - I am on OPT. My OPT period began on at the end of August. I was supposed to graduate and join work on Sept 9th, that got delayed to Oct 21st and in the interim I had to travel to Toronto. I wanted to use this opportunity to get my visa renewed since I planned to travel to India in December and to and from Canada over the next year.

Due to the 221G, I have been accruing unemployment days for no fault of mine i.e. I have a valid offer, I can join work if they let me in to the country by giving a visa. I am close to hitting the 90 calendar day mark.

 

To avoid going out of status, I contacted the company I was supposed to join to ask them if they could employ me remotely. The immigration attorney consulting with this company said it didn't matter - I would still be unemployed even if they got me working remotely since I would be out of the country. And that my only hope was that the visa arrives in time before the 90 day period expires. If not, I'd have to wait till H1B gets stamped to enter - i.e. ~ another year at least.

 

I tried looking at forums, read USCIS and SEVIS guidelines. The language is somewhat unclear. Here's what SEVIS has to say about this:

 

 

How does travel outside the United States impact the period of unemployment?

Time spent outside the United States during an approved period of post-completion OPT counts as unemployment against the 90/120-day limits, unless the student is either:
Employed during a period of leave authorized by an employer; or
Traveling as part of his or her employment.

 

Here is what USCIS had to say about this:

 

 

(13) Temporary absence from the United States of F-1 student granted employment authorization.

 

(i) A student returning from a temporary trip abroad with an unexpired off-campus employment authorization on his or her I-20 ID may resume employment only if the student is readmitted to attend the same school which granted the employment authorization.
 

(ii) An F-1 student who has an unexpired EAD issued for post-completion practical training and who is otherwise admissible may return to the United States to resume employment after a period of temporary absence. The EAD must be used in combination with an I-20 ID endorsed for reentry by the DSO within the last six months.
 

 

Since the language is a little ambiguous, I was hoping if legal counsel present on this site could share their views on this topic.

My questions are - If my employer in the US decides to employ me remotely - will I still accrue unemployment days? If I am employed with them and put on leave, does this still happen? Does the fact that I was employed once I stepped out of the country have any bearing on the validity of employment?

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