“International Students Need Not Apply?”: Exceptions to the Rule for Working, Part 2

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This week, I’ll be discussing optional practical training (OPT), which is another exception to the F-1 no-working rule. OPT is only allowed after completing the first academic year. OPT activity must be related to your field of study. Unlike curricular practical training, however, you must apply to the United States Citizenship and Immigration Services for an employment authorization card for OPT purposes. You must physically have the card before starting work.

Optional Practical Training

OPT comes in two “flavors.” There is pre-completion OPT which can be used during your vacation and during school. However, during the school year, pre-completion OPT cannot be for more than twenty hours. The other flavor is post-completion OPT. Post-completion OPT may be obtained after you complete all of the course requirements in your course of study, with the exception of your thesis or dissertation. Regardless of whether you use pre-completion OPT or post-completion OPT, you can only have a total of twelve months of OPT. While there are generally no extensions, you can apply for a new twelve months of OPT after each additional degree level. Please note, however, that you cannot have more than 90 days of unemployment during this initial OPT period.

STEM OPT Extensions

Beyond OPT, the government has allowed individuals who have a degree in certain science, technology, engineering, and mathematics (STEM) fields to seek OPT extensions. This is allowed when an employer has signed up for the E-Verify program, a joint program created by the Social Security Administration and the Department of Homeland Security to allow employers to verify the employment eligibility of all new hires, not just foreign nationals. While the E-Verify program is optional for many employers, it’s required in order for you to apply for an extension to OPT. You can apply for up to seventeen months of additional OPT.

As of May 10, 2016, however, requirements on the STEM OPT extension will become stricter. The trade-off is that you can apply for up to twenty-four months of additional OPT time beyond the initial twelve months. With this new program, an employer must not only continue to be signed up for the E-Verify program, but must also complete a special form to outline details of a training program for you. The employer must also confirm having sufficient resources and personnel to ensure that the training program will be carried out for you, that it won’t be displacing any U.S. workers with your employment, that it’ll be offering benefits commensurate with those offered to similarly employed U.S. workers, and that the training program is for your benefit. There’ll also be self-evaluation and program evaluation requirements throughout the additional twenty-four months as well as reporting requirements for your DSO.

If you’re already in your seventeen-month extension, you may apply to extend the seventeen months for an additional seven months which will amount to the same twenty-four-month extension if you meet the other conditions and if you still have at least 150 days left in your original seventeen-month STEM OPT period.

One additional benefit is that you can even apply for a STEM OPT extension based on a prior degree. This prior degree, however, must meet certain requirements, including being a U.S. accredited program.

Similar to the initial OPT period, there is an unemployment prohibition. Currently you can’t have more than 90 days of unemployment during the initial OPT period and no more than 30 days of unemployment during the STEM OPT extension. Under the new rule, the 90-day prohibition remains for the initial OPT period but the 30-day prohibition has now been extended to 60 days.

Cap-gap Provision

Before closing out the discussion on employment permission granted to those in F-1 status, one last item to discuss is the cap-gap provision. This allows individuals who are currently in any period of post-completion OPT to extend their OPT time, regardless of the STEM OPT periods and requirements, under the following conditions:

  1. An employer has filed a change of status H-1B petition for the individual while there are still H-1B visa numbers available.
  2. The petition is not frivolous.
  3. The individual’s OPT is still valid at the time of the filing.

Under these conditions, the OPT would be extended until September 30 of that year, unless the petition filed by the employer was not chosen for case processing or unless the petition is denied.

In short, international students who are in the F-1 status are allowed to stay in the U.S. for the main purpose of education. However, employment authorization under the limited circumstances listed above is available. As with any of the rules, there are many different exceptions and you should consult a competent immigration attorney to navigate through the requirements and how they would apply to your specific set of circumstances. The above has been provided just for educational purposes.

 

VinceLauAbout the Author:
Vincent W. Lau is the managing partner for Clark Lau LLC in Cambridge, MA and serves as adjunct faculty for New England Law Boston. He is also active with the American Immigration Lawyers Association where he serves as an appointed member of the national liaison committee to the U.S. Department of Labor.

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