During college or after graduation, a student may be given permission to work, called “practical training,” for up to 12 months after each degree. In certain circumstances one may obtain curricular practical training while studying for a degree. Before a student may begin work, he/she must have a valid Employment Authorization Document (EAD) granted by USCIS. This will be issued only after the student has attended school for nine months. Alternatively, an unrestricted social security card and an original notice that the work authorization application has been approved are acceptable. In both cases, students must obtain these documents before they may begin work.
The F-1 student visa classification allows foreign nationals to attend an academic school in the U.S. To obtain an F-1 visa the individual must show availability of funds, have foreign residence, be proficient in English, and have sufficient academic credentials. A student’s Form I-94 is marked with a “D/S” designation, which indicates that he/she may stay in the U.S. for the duration of status based on the criteria listed on the student’s I-20 form. If students work illegally, take less than a full course load, or drop out, they have violated their status. A student who violates his/her status usually is ineligible to change to another visa classification within the U.S. and must go home to obtain another type of visa to reenter the U.S.
F-1 Practical Training
OPT Valid up to 29 Months for Technology Grads
Current rules create complex criteria for certain F-1 students to be granted Optional Practical Training (OPT) for up to 29 months. This includes both new applications and extending current OPT.
Foreign students with a degree in science, technology, engineering or mathematics (“STEM”), who have OPT and are working in their field for an employer enrolled in the Department of Homeland Security’s SAVE Program, with the endorsement of the school’s DSO (Designated School Official for student visa matters), may:
- File an application to extend OPT employment authorization for an additional 17 months (29 months total);
- The OPT Employment Authorization Document (EAD) will be automatically extended up to 180 days while the application is pending;
- The employer will be required to report termination of employment to the DSO or other DHS designated agent;
- The DSO will report the details of the student’s employment, and the maintenance of status through SEVIS (the government’s post-9/11 student tracking system).
To be eligible for the 17-month extension or 29-month OPT, a student’s degree must be in one of the following areas:
- Actuarial Science
- Computer Science (other than data entry/microcomputer applications)
- Engineering Technologies
- Biological and Biomedical Sciences
- Mathematics and Statistics
- Military Technologies
- Physical Sciences
- Science Technologies
- Medical Scientist (MS or PhD)
The Classification of Instructional Programs developed by the U.S. Department of Education National Center for Education Statistics is utilized to determine degree classification.
Employer Requirements - E Verify
The student must be working for (or have a job offer from) an employer enrolled in the E-Verify program. Participating in E-Verify requires an application by the company, and signing a “Memorandum of Understanding.” This involves an ongoing commitment by the company to utilize the government’s E-Verify system to verify EVERY new employee has a legal right to work in the U.S. – not just foreign students with F-1 visas.
Many employers are not currently enrolled in E-Verify. There are costs and burdens as well as benefits to this program beyond those related to OPT. Whether to enroll in E-Verify is a business decision for each employer and is driven by many factors.
If a student applies for a 17-month extension or 29-month OPT, the employer must agree to notify the student’s DSO or other agent designated by DHS within 48 hours should the student’s employment end.
A student must also request their DSO recommend the extension or 29-month OPT. The DSO will verify the student’s eligibility, certify that the student’s degree is on the STEM Designated Degree Program List, and assure that the student and employer are aware of their responsibilities for maintaining status.
The recommendation by the DSO is made through the online SEVIS database.
The student is required to report to the DSO every six months to verify continued eligibility. The employer is required to report any termination in employment. The DSO will enter these reports into SEVIS.
Within 10 days, the student must also report to the DSO any change of name, mailing or residential address, employer name and address, and interruption or loss of employment. The DSO will update SEVIS with this information.
Type of Job
The employment must be in the area of the student’s education (i.e., STEM).
Benefits for Technology Companies
The 29-month OPT is a huge benefit for some technology, engineering and scientific companies. There is no longer such great pressure to obtain an H-1B visa in the student’s first year of OPT. One can apply possibly three times for an H-1B while the student works on OPT. Those with master’s (or other advanced degrees, or a bachelor’s degree plus five years of work experience) may even be able to avoid the need for an H-1B visa, and may obtain a labor certification and green card before the end of the 29 months of OPT. For those from India and China, for whom the visa numbers are backlogged, this may not be the entire solution, but for others it is.
The employer’s E-Verify requirement may be a roadblock for some. But for small companies needing excellent workers, this will, in many cases, not be an impediment.
Maintenance of Status on OPT
Students with OPT must now be employed to maintain status. Students may not have more than 90 days cumulative unemployment during post-completion OPT. If they have been granted a 17-month extension or 29-month OPT, the cumulative time unemployed may not exceed 120 days.
There has been little guidance or interpretation from the USCIS beyond a press release, and the discussion contained in the rule itself.