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SEVIS Termination After Cap H-1B Consular Processing Approval?

Every year, many F-1 international students are named as beneficiaries in cap H-1B petitions to seek employment authorization. There are multiple ways H-1B status can be granted to an F-1 student. Most H-1B employers request that the F-1 student be granted a change of status from F-1 to H-1B. In this case, the student's status will be changed from F-1 to H-1B seamlessly. 

If the prospective H-1B worker is outside the U.S., employers will request the approval notice to be sent to an overseas U.S. consular office, so that the employee may apply for an H-1B visa to enter the U.S. to commerce H-1B employment. This process is known as “consular processing”. 

While consular processing usually is requested for employees who are outside the U.S., some F-1 students may choose this route even if they are staying in the U.S.  One reason for this decision is that they want to exhaust the OPT/STEM OPT period before starting the H-1B employment period.  

In this situation, the SEVIS record should continue to reflect the student's F-1 or OPT status. However, there are still numerous reports that students' F-1 SEVIS records got automatically terminated on October 1st, even though consular notification was requested and approved in their H-1B petition. Several of our clients also encountered this issue recently. 

For example, one of our clients was currently in the last semester of his academic program, and had a cap H-1B consular processing approval. He was surprised to find out from his school that his F-1 SEVIS record was terminated on October 1st, 2023. Since his H-1B status was not yet effective, he suddenly became out of immigration status. Another client, who recently received her OPT work authorization and opted for consular processing, also received notice that her F-1 status would be terminated because of the H-1B approval. This means she would lose the unused portion of her OPT employment authorization.

If this happens, an F-1 student should contact their school DSO and/or program advisor immediately, and request the officer to perform a "data fix" to the SEVIS record to correct such mistakes in a timely manner. School DSOs should submit a data fix ticket to the SEVIS helpdesk for the correction. An I-797 approval notice reflecting the consular notification would usually be required in a data fix request. The specific language they should be looking for on the notice would be "(t)he above petition has been approved, and notification has been sent to the listed consulate". 

While the erroneous F-1 termination could be frustrating and terrifying, F-1 students should stay calm and take immediate action. Otherwise, their status and work authorization will be jeopardized, and a formal F-1 status reinstatement, which is more complicated and time-consuming, would be required. When in doubt, be sure to reach out to an experienced immigration attorney for advice and assistance.

Read More: Myimmigrationlawyer

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