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Employers and OPT-Employees

Optional Practical Training (“OPT”) is a temporary permission granted by the USCIS to F-1 students to enable them to gain experience in the U.S. related to the program of studies from which they have graduated.[1] OPT enables employers to “test-drive” bright new professionals with relatively little “immigration pain.” Because it is so easy, employers sometimes worry that there are hidden tricks to OPT employment, while students sometimes forget the few administrative obligations that do exist. This article seeks to clarify OPT for employers.

To begin with, there are two types of OPT. An initial grant of OPT is available for up to 12 months upon graduation from a degree-granting program. Additionally, certain students whose programs of study were in a Science, Technology, Engineering or Math (STEM) field[2] are eligible for a 17-month “STEM” extension of OPT. The rules governing OPT[3] are slightly different depending on whether it is for the initial period or for the STEM extension. In either case, a Form I-766 Employment Authorization Document (“EAD”) is issued to the student.

Process

For both the initial grant and the extension, the process begins when the student submits a request to the “Designated School Official” (“DSO”) for the desired OPT.[4] In the request, the student must identify an employer.[5] When DSO approves the request in SEVIS,[6] a new Form I-20[7] is generated that is annotated with the dates of the requested OPT and the employer name. The student then must submit a Form I-765 Application for Employment Authorization, accompanied by this new I-20, to the U.S. Citizenship and Immigration Service (“USCIS”). When the USCIS approves the application, it issues the EAD to the student. Total USCIS processing ranges between two to three months, but the closer the filing is to the summer, the longer (generally) issuance will take. Students must have the EAD “in hand” to begin their initial OPT activities, but this is not the case for STEM-extensions of OPT (see below).

Work Authorization

Section 274a.12 of Title 8 of the Code of Federal Regulations categorizes all the different types of work authorization issued by the USCIS to non-US citizens into three rough categories.[8] OPT fall under 8 CFR 274a.12(c) – individuals who are work authorized upon received of an EAD. The OPT EAD is a general work authorization, permitting the employer to place the student in any appropriate role for which the student is qualified.[9] The EAD[10] is the only document that prospective employers are required to review to verify work authorization.[11] As long as the EAD is unexpired and appears to relate to the student presenting it, the employer can rely on it as authorizing the work that the employer is offering to the student.[12]Employment OPT F-1 Student

Surprisingly, though, the time between the expiration of the old EAD and the issuance of the new STEM-extension EAD also has been generously interpreted by the USCIS and SEVP in a way that ensures that the career-related activities of the student are not interrupted. The regulations grant these students an interim work authorization that covers the period between the expiration of the original EAD and the receipt of the new STEM-extension EAD.[13] This is similar to the 240-day rule for extensions of H-1B, TN or other work authorizing statuses.[14] Students thus are specifically authorized by law to continue to work during this period.[15] Thus, employers need not require that students have new STEM-extension EADs “in hand” prior to the expiration of the original EAD to authorize continued or new employment.[16]

STEM Extensions

As noted, certain students in approved STEM fields of study may apply for 17-month extensions of OPT. STEM-extensions are available only for those STEM students whose employers are registered (and in good standing) in E-Verify.[17] The employer also must specifically agree to report the termination or departure of an OPT employee to the DSO within 48 hours of this occurring.[18]

STEM extensions of OPT are a “once in a lifetime” opportunity. A student may apply for a STEM extension of OPT only once, regardless of how many STEM degree programs they complete.[19]

Changes to OPT Employment

With most work-authorizing statuses, such as H-1B, “material changes” that affect the work activities being performed by the foreign national require employer action, such as by notifying the government of the change through the submission of an amended petition. With OPT, employer action is never required. Instead, student action is required for a wide range of less obvious circumstances.

As background, SEVIS was a response to the events of 9/11. Its purpose is to facilitate government monitoring of students (among others) throughout the time they are in the U.S. The privilege of engaging in post-graduation career-related activities in the U.S. is dependent on the student facilitating this monitoring. The key, then, is whether a change impacts either the ability of the government to find the student (location), or the relationship the student has with the employer (work). If neither result will occur, then action most likely is not required by either the student or the employer.

This means that relatively minor changes in personal circumstances require student notification to the DSO. For example, regulations require students to report to their schools any changes to home addresses.[20] At the same time, other changes might not require any notification under OPT. For example, changes to worksite do not require action by either the student or employer, provided that the worksite change is not the result of a move by the student or a change in the ultimate employer. (The student’s SEVIS record for the OPT authorization lists only the employer and its main or primary address – not the student’s worksite location – so changes in data not contained within SEVIS ultimately are irrelevant to SEVIS.) Similarly, changes to job duties do not require notification to the DSO (but the student should retain documentation verifying that the new role continues to relate to the student’s degree field[21].)

Changes to employers are considered significant. If the student changes employers or otherwise acquires more or different career-related relationships (such as, but not limited to, engaging in concurrent employment with multiple employers, self-employment, employment through a consulting agency, unpaid activities, etc.) then the student should dutifully report all such events to the school, and the DSO then follows SEVP guidelines for listing the data within SEVIS. Students are permitted to change employers at any time during approved 17-month STEM extensions to OPT[22] as well as during the interim work authorization between the expiration of the initial EAD and the issuance of the new EAD[23], but at all times, the student’s employer(s) must be registered and in good standing with E-Verify.[24]

Maintenance of Status

OPT lasts, at most, 29 months. After that, most students change statuses – many to H-1B, but some to other visa classifications (such as TN or O-1, for example), and a few might pursue permanent residence. It is critical to the success of these later applications and petitions that students (and their employers) are meticulous with the many DSO-notifications that are required during OPT. During adjudication, the USCIS can and will compare the information in SEVIS to that submitted on the student’s resume or in other petition supporting material, to evaluate whether the student has maintained status.

For example, many H-1B petitions proudly explain the extensive work experience held by the foreign national that qualifies them for the prospective H-1B employment. Employers should take care to verify that the work experience listed by the foreign national either was authorized[25], or did not constitute employment. In other cases, the USCIS has questioned whether the past OPT activities were, in fact, related to the student’s degree field.[26]

In the case of H-1B petitions, it is particularly important that the student’s F-1 status be flawless. Regulations accommodate the move from F-1 OPT to H-1B through another form of “interim” work authorization, which bridges the time between the expiration of the student’s EAD and the start of the H-1B status at the beginning of the next fiscal year (on October 1).[27] To be eligible for this “cap-gap” work authorization, the H-1B petition must request a “change of status” and this requires the F-1 student status to be valid at the time the H-1B petition is filed.[28]

Any violation of F-1 status – even inadvertent – means that the change from F-1 to H-1B might not be approved by the USCIS. Instead, the USCIS merely might approve that the student is eligible for the H-1B classification and direct the student to apply for an H-1B visa stamp at a consulate prior to the start of the new fiscal year. The issuance of this sort of decision would terminate the interim cap-gap employment authorization[29] and the student’s ability to work would end at the expiration of the EAD.

Accordingly, by helping F-1 students to comply with the many rules governing OPT, employers can contribute greatly to the ultimate success of these H-1B petitions. Click here to see a list of critical deadlines and notifications relevant to maintaining OPT status.

image: istock.com

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[1] 8 C.F.R. § 214.2(f)(10)(ii).

[2] 8 C.F.R. § 214.2(f)(11)(ii)(A). Not all students are eligible for STEM extensions, including those who think they are in a science program. The key is the CIP code assigned by the school to the course of study on the I-20. As background, the Classification of Instructional Programs (CIP) supports the accurate tracking and reporting of fields of study and program completions activity. CIP was originally developed by the U.S. Department of Education’s National Center for Education Statistics (NCES). The CIP code associated with the student’s degree program must match one of the CIP codes approved as a STEM program. This is particularly an issue for students who have double majors (e.g. Finance and HR) because SEVIS permits the identification of only one CIP code, and if the non-science major is chosen, then the student is not considered a STEM student. See, e.g.SEVP Policy Guidance 1004-03 – Update to Optional Practical Training,” hereafter referred to as the “SEVP OPT Guidance,” § 8.1.3. Similarly, schools sometimes have a choice as to which CIP code to use for certain “softer” sciences, and it is possible for a CIP code to be chosen that is not one on the ICE list. In either case, the student should talk to the school about whether the CIP code can be changed. If this is possible (subject to the school’s internal policies), this must be done before the submission of the first request for OPT. Once the EAD has been issued in the “non-STEM” CIP code, the student no longer can change the CIP code.

[3] 8 C.F.R. § 214.2(f)(10)(ii); SEVP OPT Guidance § 4.9.

[4] 8 C.F.R. § 214.2(f)(11). Different schools have different policies and procedures for OPT requests, so your student must check with their school to verify the specific procedure and timeline for these requests.

[5]User Manual for School Users of the Student and Exchange Visitor Information System (SEVIS): Form I-20, Version 6.18 (Oct. 31, 2014), Section 6.3, pg 122- 124, Exhibit 41.” Depending on the type of OPT activities the student anticipates, there might not be “traditional” employer (for example, in the case of self-employment), or the student might have multiple “employers”. See my past posts about the different options for employment while in OPT.

[6] Student and Exchange Visitor Information System – an online electronic records system that the U.S. government uses to collect and maintain accurate and current information on F-1 students, among others. Input of an “employer” is done primarily to verify that there is a relationship somewhere through which the student will engage in career-related activities. As noted, the requirement to list an “employer” does not restrict the activities or movement of students for their employers during the OPT employment.

[7] A Form I-20 Certificate of Eligibility for Non-immigrant (F-1) Student Status is the government-controlled (but school-issued) document that controls and verified the student’s right to be in the U.S. and the activities in which they may engage.

[8] 8 C.F.R. § 274a.12(a) is for individuals who are work authorized solely as a result of their status and for whom no additional documents are required (such as lawful permanent residents); (b) individuals who are work authorized solely for specific employers and for whom approval notices listing the specific employers are required (such as H-1Bs), and (c) individuals for whom work authorization arises once they obtain an Employment Authorization Document.

[9] Most employers never see the student’s original OPT request to the DSO, the Form I-765 Application, or the final Form I-20 that list the employer name, and they are not required to ask for these. In fact, asking for any of these documents might constitute asking for “more or different documents” and thus constitute over-documentation, contrary to 8 U.S.C. § 1324b(a)(6). See generally, Handbook for Employers Guidance for Completing Form I-9 (Employment Eligibility Verification Form), Form M-274, April 30, 2104.

[10] 8 C.F.R. § 274(c). An EAD based on OPT has “C03B” listed for the “code” on the face of the EAD. The focus of the OPT regulations is on ensuring that the career activities be in an area related to the student’s course of study, but the burden of ensuring that the activities relate to the student’s course of study falls solely on the student. This is not a determination that the employer must make, or even is able to make. OPT EADs do not list any restrictions.

[11] EADs do not list employer names, and the employer does not need to look behind the EAD to verify whether it was named in the student’s OPT request or I-765 application. The USCIS makes this clear in its online discussion of how to verify the work authorization of “Foreign Students” (accessed Feb 14, 2015). “The EAD establishes the student’s identity and employment authorization.”

[12] The student should take care to document that the work activities are appropriate to the student’s career and education. SEVP recommends that the student retains documentation about the job duties and how they relate to the student’s degree program. SEVP OPT Guidance § 7.2.4.

[13] 8 C.F.R. §§ 214.2(f)(11)(i)(C), 274a.12(b)(6)(iv).

[14] 8 C.F.R. § 274a.12(b)(20).

[15] 8 C.F.R. § 274a.12(b)(6). “Employment is authorized beginning on the expiration date of the authorization issued under paragraph (c)(3)(i)(B) of this section and ending on the date of USCIS’ written decision on the current employment authorization request, but not to exceed 180 days.”

[16] To document the work authorization, the student can present the expired EAD along with a copy of the Form I-20 annotated by the DSO to reflect its approval of the OPT STEM-extension request. See USCIS Form M-274 “Handbook for Employers,” April 30, 2013, p. 20.

[17] 8 C.F.R. § 214.2(f)(10)(ii)(C)(3)If the student has more than one “employer” then each “employer” must be registered in E-Verify.

[18] 8 C.F.R. § 214.2(f)(10)(ii)(C)(4).

[19] 8 C.F.R. § 214.2(f)(10)(ii)(C)(1).

[20] See, generally, 8 C.F.R. § 214.2(f)(12).

[21] SEVP OPT Guidance § 7.2.4.

[22] SEVP OPT Guidance § 8.5.

[23] SEVP OPT Guidance § 8.4.3. Note that this is not obviously consistent with the USCIS classification of the interim work authorization granted by 8 C.F.R. § 274a.12(b)(6) (grouped within ‘employer-specific’ work authorizations), but is consistent with the over-arching approach taken by USCIS to truly facilitate career-activities by students following graduation. To verify work authorization while the STEM-Extension is pending, the student should present the expired EAD and the new I-20 annotated by the DSO to reflect its approval of the STEM-Extension request. USCIS Form M-274 “Handbook for Employers,” April 30, 2013, p. 20. If the student also is changing employers such that the I-20 lists a different employer in the annotation, the student should return to the DSO to amend the request (and obtain a new I-20) and then re-file the I-765 application, without fee.

[24] 8 C.F.R. § 274a.12(b), SEVP OPT Guidance § 8.5. If the I-765 Application still is pending, the USCIS will verify the employer’s E-Verify registration during its adjudication. If the EAD has been issued, the student should retain documentation verifying such E-Verify registration, just in case this is raised as a question later during an exploration of whether the student maintained status.

[25] There are a number of different ways by which F-1 students may legitimately gain experience during their studies, including several different forms of work authorization. 8 C.F.R. § 214.2(f)(9). If an employer is uncertain about whether a student’s past activities were permitted under the terms of the F-1 status, the best source of information is the student’s DSO.

[26] See above, footnotes 13 and 20.

[27] 8 C.F.R. § 214.2(f)(5)(vi)(A).

[28] 8 C.F.R. § 214.2(f)(5)(vi)(C).

[29] 8 C.F.R. § 214.2(f)(5)(vi)(B).

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