U.S. Immigration Risks in Claiming F-1 OPT or H-1B Status When There is No Real Job

If you seek to maintain F-1 OPT, F-1 STEM OPT or H-1B status through employment – when there is no real job – you run the risk of being found inadmissible under INA 212(a)(6)(C)(i). This law states that you have a lifetime bar if you engage in fraud or willful misrepresentation of a material fact to obtain a U.S. immigration benefit.

Being inadmissible disqualifies you from getting a change or extension of status, a new visa, or lawful entry to the United States. While a 212(d)(3) nonimmigrant waiver or I-601/INA 212(i) immigrant waiver might solve the issue, it doesn’t work in every case. It’s best to avoid a fraud/misrepresentation charge altogether.

Episode 11 of The Legal Immigrant podcast covers:

1) The different contexts in which U.S. Customs & Border Protection, USCIS and U.S. Embassies and Consulates can make the 212(a)(6)(C)(i) charge 

2) F-1 OPT and STEM OPT rules to follow
  • Time restrictions for submitting Form I-765, application for employment authorization
  • Unemployment grace period of 90 days for F-1 OPT and an additional 60 days for F-1 STEM OPT (i.e. total of 150 days during entire post-completion OPT period)
  • F-1 OPT and F-1 STEM OPT must involve at least 20 hours of work related to field of study
  • F-1 may include a paid job, a paid internship, an unpaid internship, volunteer work, contract work, agency work, or self-employment
  • F-1 STEM OPT must include paid employment with a company that is enrolled in the E-Verify program
3) Immigration fraud investigations and related problems
  • Many F-1 and H-1B visa holders, particularly from China, get their visas revoked or denied or are refused entry to the United States because they had listed Findream or Sinocontech to receive work authorization
  • F-1 and H-1B visa holders, most from India, face U.S. immigration and visa problems if they listed companies like Integra Technologies LLC, AZTech Technologies, Andwill, Wireclass or Tellon Trading to obtain OPT, STEM OPT or other work permit
  • Problems include refusal of entry to the US, visa denials, visa revocations, and denials of change/extension of status requests. In some cases, a 212(a)(6)(C)(i) charge is made.
4) 3 key indicators that the petitioner or employer may be flagged 
  • Does the company require you to pay a training fee, including before it issues the job offer letter or Form I-983 training plan? 
  • Does the company fail to assign roles and responsibilities as stated in the job offer letter, Form I-983 for STEM OPT, or Form I-129 Petition for H-1B? 
  • Does the company offer employment verification, pay stubs and W2s when there was actually no real work or no pay received for an F-1 STEM OPT or H-1B position?
5) The longer you are associated with a flagged company, the more U.S. immigration risks and visa problems you will have
  • As soon as you find out there’s no real job, move on quickly. 
  • You might be tempted to use fake employment to maintain status or stop the accrual of unlawful presence. But you run the risk of not only falling out of status, but also being charged with a lifetime inadmissibility bar under INA 212(a)(6)(C)(i). 
  • US immigration agencies are less forgiving when it comes to a fraud or misrepresentation charge because it means you’ve been found to have lied to the U.S. government to gain an immigration benefit. 
This is general information only and is not legal advice. To request a consultation, you may submit an email to info@dyanwilliamslaw.com or online message at www.dyanwilliamslaw.com

For more information, see:

Dyan Williams, Esq.
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

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