Getting a new F1 while on OPT - what happened


droppingby

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I felt compelled to write this post because when my girlfriend went through this process a few weeks ago we found it difficult to find reliable information on how likely (or if it was even possible) for someone to apply for an F-1 visa while on OPT. A lot of the information out there is simply incorrect, and nearly all of the lawyers we spoke to were highly pessimistic about her chances of being approved for a visa. It was a difficult time for us and now that she successfully got a new visa and was able to enter the country legally, we wanted to share our story as well as what we learned so that perhaps one day some poor soul desperately surfing the web in search of answers might find this post somewhat useful. I will try to be as thorough as possible, since I do not plan on returning to answer questions or post further.

 

Background

She got an undergraduate STEM degree at a university in the US, then took a job pertaining to her major through OPT. She opted to use the STEM extension to push out her OPT tenure to a total of 29 months. At one point while she was on her STEM extension, her F-1 visa (not her F-1 status) expired. She left the country soon thereafter to attend company meetings and was denied entry when she tried to return.

 

What happened

She made an appointment to interview for a new visa at her local consulate. After a brief interview she was approved for a new visa and came home within two weeks of being denied entry. We hired an agent (not a lawyer) for the process, and through that we found several other people who had cases similar to ours - thus affirming our belief that her success was likely not a one-off stroke of luck.

 

What we learned and what we did

Most people we talked to (online posters and immigration lawyers alike) seems to think that she had anywhere from a 0-50% chance (with most people leaning more towards the zero) of getting her visa approved, as she was no longer a student. Apparently, the truth is that the interviewer is 'required' to consider OPT as a valid reason for entry on a student visa even if the applicant is no longer a student. Below is a consulate webpage alluding to the subject (under Other Information): 

http://www.ustraveldocs.com/ph/ph-niv-typefandm.asp#otherinfo

 

I found that student offices (and not just hers) were also pessimistic about the probability of success, but they for the most part do acknowledge that it is indeed possible.

 

Of course, the likelihood of being approved for a visa is lower than if you were a student, but not impossible. The application for an F-1 visa while on OPT hinges on two main points: proof of employment and no immigration intent. To be approved, you must prove to the officer these two points (though it should be noted, we found that some interviewers did not ask the applicants about the latter - some just checked for proof of employment and that was that. No lengthy follow up questions or anything).

 

We were advised to gather the following materials (required stuff in bold): Passport, Photo ID, Valid and signed I-20 (note after graduation it needs to be signed every 6mo, not 1yr), EAD, the expired F-1, Birth Certificate, i-797, resume, school transcript, proof of graduation (may be in the transcript), Job offer letter, 1040 tax return, W-2 form, last 3 months worth of paystubs, business card, certificate of employment (basically a letter from your employer confirming that you are currently employed by them - google for templates), letter of support from the employer (letter from employer vouching for you), letter of support from any other professional organizations directly pertaining to your job, bank statements for both you and who you depend on to pay your tuition (to prove your financial stability).

 

These are for the most part considered supporting documents. I *think* you are only required to bring the stuff in bold - they may not even look at the rest of the documents. We prepared them all anyway as we were told the interviewer may request to see them to supplement her case.

 

Her interview was fairly straightforward. Having said that, we did learn that people do get asked questions regarding their current job, how their field of study relates to the job, future plans for after OPT is complete, whether you plan on applying for an H1-B thereafter (apparently many interviewers expect you to apply for a work visa while on OPT... but this is heresay), reason for why you left the country with an expired visa, the importance of your OPT experience to your future career, etc.

 

Once you are done with your interview, the rest of the process is the same as with applying for your first F-1. Takes a few days to process, etc.

 

 

 

This covers pretty much every question we had while going through the process of applying for a new F-1 while on OPT. It was a harrowing experience fraught with many a sleepless night - I don't plan on returning to answer more questions, but hopefully this comes in useful for someone else that finds themselves in a similar situation. Good luck!

 

-droppingby

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Swinging by to drop off a few more comments I forgot to leave yesterday. Please note that unlike the original post, the below consists of information we were told, rather than personally experienced.

 

We briefly considered having her just fly in on a tourist visa so she could work with lawyers in the US to work through this. Do not get cute and try this. If you enter on a visa other than a F-1, then you automatically forfeit your F-1 status and your OPT is kaput. Do not enter until you get your F-1 visa.

 

I should also mention that we were also advised that should your F-1 be rejected, you may (not will) be denied entry if you try to enter on a tourist visa thereafter, although the officer may opt to grant you a drastically shorter visa (aka. 1mo vs the standard 90 days). I cannot verify the validity of that advice, however.

 

In the case that the visa officer deems your application not valid for approval, he or she may choose to proceed in two ways. In one scenario, in which the officer feels he needs to see more supporting information, the officer will ask you to send in additional supporting documents but will not require another interview. You will be approved or denied based on the evidence supplied by the new supporting documents. In another scenario, you may be just plain rejected. In this case, they are required to tell you the reason for your denial (or so we were told). You can re-apply for a new visa with documents rebutting the officer's reasoning but in this second interview, the interviewer will not only weigh the merits of your case, but will need a strong reason to override the previous officer (unlikely, unless circumstances have changed drastically since your last interview). Hence, subsequent applications are supposedly less likely to be approved and hurt your chances to be approved for future visa applications.

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