OPT MOTION- UNLAWFULL PRESENCE

[Simay]

Hello, I came to the USA with an F1 student visa. Did my master's in the technology field, then applied for OPT. After 1 year of the initial OPT, before the expiration date, I applied for STEM OPT Extension. First received RFE, then Denial Notice. After talking with the school's DSO, I filed the motion and waiting for a decision. It has been 5 months since the initial OPT expiration date. Do I need to file the reinstatement at the same time or wait for the decision of the motion? Because after 6 months, I will be considered in unlawful presence.

Thank you in advance, 

Simay.

[Attorney_8]

While it is true that filing of a motion does not put the applicant back in status unless it is approved, F-1 students do not start accruing unlawful presence until either USCIS or an immigration judge makes a finding of status violation. Therefore, it is unlikely that you have been unlawfully present since the expiration of your first-year OPT. In addition, you should have also been eligible for the 60-day grace period after the end of your initial OPT period. Regardless, if you apply for reinstatement based on your admission to a new program of study, your STEM OPT can no longer be approved as you cannot pursue both OPT based on your previous program and starting a new program of study. The Murthy Law Firm attorneys can advise you on the best courses of action depending on your specific situation.