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How long can I stay in the U.S. after an OPT extension rejection without impacting my EB-5 application?

I am a Korean EB-5 investor with a pending I-526. I am currently in the U.S. under F-1 OPT, which is about to expire, so I am applying for a STEM OPT extension. It is possible that I might not receive a response before the first OPT expires. If the extension application is rejected after that, I will start accruing unlawful presence from the second day of the rejection. I learned that under such circumstances I would have to leave the country in a day or two after receiving notice from USCIS. But practically speaking, it is impossible for me to leave on such short notice. How long is it safe for me to stay in the U.S. after the expiration date of my first OPT and the rejection of the OPT extension application without impacting my pending I-526?

Answers

  • Avatar

    Dale Schwartz

    Immigration Attorney
    Answered on

    As long as you leave before six months from the denial pass, you will not be barred from returning when your I-526 is approved.

  • Avatar

    Daniel A Zeft

    Immigration Attorney
    Answered on

    This situation will not affect your pending I-526 petition. You should not accrue 180 days of unlawful presence. 180 days or more of unlawful presence will have significant negative consequences for you.

  • Avatar

    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Honestly speaking, you should try to leave as soon as possible. No need to jeopardize your I-526 application. Technically speaking, you could stay around during the 30- to 60-day grace period after the rejection, but why chance your pending I-526 application? You must know this already, but let me stress that you should for sure leave within 180 days. Otherwise, you will be subject to the three-year bar, and if you pass the one-year mark, the 10-year bar. So, in short, let's hope that your STEM OPT will be approved. If not, it is most wise to leave as soon as it is practically feasible.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Generally there is a short grace period for departure. It's 30 days or so. The I-526 is not actually going to be affected, but the future application for conditional residency (which should be through the consulate to be safe in your instance).

  • Avatar

    Marisa Casablanca

    Immigration Attorney
    Answered on

    Students in status while attending school or in OPT status have a 60-day grace period to leave the country. It may be possible that you will not receive your extension before the present OPT expires. Since there is no guarantee that the extension will be approved, you should leave the country within the 60 days of the first OPT expiring.

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    You should leave the U.S. as soon as reasonably practical, but in no event stay in the U.S. in excess of 180 days to avoid application of a three-year bar to come back to the U.S.

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You must leave without accruing a total of 180 days and be conscientious in how you count those days. It is advisable that you prepare to leave as soon as possible without engaging in an unnecessary counting of days.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    If your STEM OPT application is denied, you should depart the U.S. as soon as reasonably possible, and definitely before you accrue more than 180 days of unlawful presence to avoid a statutory bar from re-entering or receiving an immigration benefit.

  • Avatar

    Belma Chinchoy

    Immigration Attorney
    Answered on

    You should leave as soon as possible, but certainly before 179 days of unlawful presence has accumulated. Make sure not to work during this time.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    As long as you do not accrue more than 180 days of unlawful presence, you should be able get back under the EB-5 immigrant visa. Thus, please leave within four to five months after your STEM extension gets denied.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If your OPT extension is denied you should try and leave as soon as possible. When applying for future visas you need to disclose unlawful presence. In reality, a few days is often forgiven but do not drag it out for months. Obviously, at 180 days you will be barred for three years but so many give bad advice.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    If you leave promptly you should be fine. A few days is understandable.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    Once your OPT expires, you are out of status and you begin to accrue unlawful presence, you would need to depart as soon as possible but, at the very least, within six months from the date your OPT expired. If you remain in the U.S. six months or longer out of status, you will be subject to a three-year bar and thus, when you apply for your immigrant visa based upon your approved EB-5 Petition on Form I-526, your immigrant visa would be denied and you would be told that you would have to wait at least three years or as long as 10 years if you remain out of status for more than one year.

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