Optional practical training: NRI Helpdesk: Are you traveling during the optional practical training? Here’s what you need to know


With immigration rules constantly changing with the pandemic situation, it is difficult to stay on top of everything.

For our NRI readers, we’ve launched an Immigration Helpdesk. Write to us at [email protected] and our team of experts will tackle the most pressing issues.

* Please note that the questions have been edited and / or clubbed so that we can answer similar questions at a time and the answers are clear and relevant to our audience.

I am currently in the United States in F1-CPT. My session for next year starts September 20, 2021. My wife has a valid F2 visa and is currently in India. She would like to join me in the United States. As a derivative family member, is my spouse allowed to travel on August 2, 2021? If so, do they need a NIE to travel on August 2? If not, what is the earliest date they can travel?

Derived beneficiaries are allowed to travel under the same conditions as the principal. Because you would be allowed to enter the US 30 days before the semester start date without an NIE, too.

If I am already in the United States on a tourist visa, but my stay expires in September, can I still apply for my student visa?

If you are requesting a change in student status, this presents two complex issues. The government may wonder if, by obtaining or using the tourist visa, you have distorted your real intention, which was to undertake long-term studies in the United States. In addition, since it takes so long to process a change of status request, it is highly likely that your tourist status will expire, putting your legal status at risk. You should seek competent legal advice before making your decision.

My brother is employed in a company after his doctorate. He is currently on OPT. What does it take to return to the United States if they come to India during this time? What if he’s on STEM OPT? What if the OPT request is pending?

There are two aspects to these questions. First, what is required of a student to travel during their OPT. We provide some of this information below. Second, what are the restrictions due to the pandemic? Please have him contact his DSO. They must be able to provide the necessary information to travel.

In general, the following rules apply to travel:

For the post-completion OPT (first year)

If your OPT has been applied and pending, you can travel, but it is NOT recommended. Two of the main concerns are what if there is a request for proof from USCIS? You may not be able to respond in a timely manner. Also, what happens if the OPT is refused? You will then no longer be able to enter the USA even if you have a valid F-1 visa.

If your OPT is approved, you can travel if:

  • You have a valid passport and an F-1 visa
  • Proof of employment / training
  • I-20 approved by your DSO for travel

* Note that in general, the time spent outdoors during the OPT is counted towards the maximum number of days of unemployment allowed.

ROD OPT

  1. If your STEM OPT has been applied and the first year OPT is still valid, you can travel as described above.
  2. If your OPT STEM has been applied and the first year of OPT has expired, do NOT travel until the OPT STEM is approved.
  3. If your OPT STEM is approved, you can travel if:
  • You have a valid passport and an F-1 visa
  • Proof of employment / STEM training
  • Proof that you worked during the first OPT year
  • I-20 approved by your DSO for travel

* Note that in general, the time spent outdoors during the OPT is counted in the maximum number of days of unemployment authorized.

We are in the process of acquiring a company in the United States. In India and UK we have been in business for 15 years. In order to obtain L1 visas for our personnel being transferred to the United States, do we have to wait a year after acquiring the American company?

You don’t have to wait a year. U.S. immigration laws only require that employees transferring under an L-1 visa have worked outside the United States for one of the last three years immediately preceding the application. The relationship between companies does not have to be a year old. Therefore, once you have acquired a US company, you can immediately transfer all employees who meet the L-1 requirements, including those who have worked outside the US for your company group for at least one year. .

Is Company Size Relevant For A Successful H-1B Petition?

No. The purpose of investigating an H-1B petition is whether or not there is a valid job. For such a job to exist, the size of the company does not matter. Small businesses might just as well have a vacancy as larger ones.

Am I automatically eligible for an Einstein Visa Green Card if I meet 5 of the 10 qualifications?

No. USCIS follows a two-step process to determine your eligibility for the Extraordinary Ability Category of EB1-A Green Cards. The first step, numerically satisfying three out of ten requirements, is only the first step out of two. The second step is an analysis of your overall resume and the level of your accomplishments. That being subjective, this is often where USCIS is likely to deny cases. For example, you might have published 10 peer-reviewed articles. But if the journals have a low impact factor or a low academic level, your application might fail in the second step of the analysis. Therefore, just sticking to the numbers is no guarantee of successful approval.

Rajiv Khanna, Attorney General, Immigration.com

The views of the author do not necessarily represent those of ET Online, nor do they constitute legal advice or representation. The practical advice provided in the written materials is based on the author’s experiences and the current state of the law and regulations. Be sure to conduct legal research and analysis, or hire an independent lawyer for your unique situation, as the law and requirements change quickly and the author’s experiences may differ from yours.


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