F-1: Student Visas
F-1 visas are issued to individuals who have been admitted to a language or academic program at a school approved by the United States Citizenship and Immigration Services (USCIS). Upon admission to the United States, F-1 visa holders are given an authorized period of stay of “Duration of Status” or “D/S,” which allows the F-1 student to remain in the United States lawfully so long as he or she is enrolled in an approved academic program. The authorized period of stay includes the period of time required to complete the program of study, any periods of authorized employment and a sixty-day grace period to depart the U.S. upon completion of the program.
Spouses and dependent children under the age of 21 who accompany an F-1 holder to the United States may attend public and private schools up through completion of high school without first obtaining F-1 visas in their own right. They are, however, precluded from working in the United States.
F-1 visa holders are not permitted to work while they are in the United States unless they have obtained employment authorization pursuant to either curricular practical training (CPT) or optional practical training (OPT) programs. A designated school official may provide CPT certification to an F-1 holder by endorsing the student’s Form I-20, but the CPT must be an integral part of the student’s curriculum and is tied to a specific employer. If a student has received the benefit of full-time CPT for a year or more, he or she will be ineligible to receive OPT benefits following graduation. Students seeking OPT work authorization must obtain an Employment Authorization Document (EAD) from the USCIS by filing Form I-765. Although employment through OPT is not tied to a specific employer, the employment must be related to the student’s area of study. Generally, OPT is issued for a maximum of 12 months and may be applied for up to 90 days prior to graduation or as late as 60 days after graduation.
Generally, students are not given work authorization during the first academic year (remember, an academic year is nine months long), except for on-campus work which may begin as soon as the student has been admitted in F-1 status. After completion of the first year of study, students may be given work authorization for off-campus employment if one of the following applies:
Student experiences severe economic hardship caused by unforeseen circumstances beyond the student’s control. Work is limited to 20 hours per week while school is in session, and full-time is permissible during holidays or school vacations.
Student has been offered employment by a recognized international organization and obtained written certification from the organization that the work for which the student has been hired is within the scope of the organization sponsorship.
Student falls into a class of students allowed employment due to emergent circumstances as designated by the federal government. Such designation shall be noticed in the Federal Register and include specific information regarding the suspension of course load requirements and/or hours of employment per week requirements.
As previously mentioned, on-campus employment is not subject to the “no employment during the first year of academic study” prohibition. “On-campus” is defined to include work performed on school premises or at an off-campus location which is educationally affiliated with the school. Work is limited to twenty hours per week when school is in session and may not displace U.S. workers. Once the student has been completed the course of study, on-campus is no longer permitted unless it is pursuant to practical training.
Social Security and Medicare Withholding for F-1 Students
Employers should note that, unlike most other employment authorized statuses, employees who are hired pursuant to OPT or CPT authorization are normally not considered tax residents and therefore not subject to Social Security and Medicare (FICA and FUTA) tax withholding. However, where an employee has been in F-1 status for several years, consultation with a tax or payroll specialist is recommended, as such persons in some cases may be deemed a tax-resident.
H-1B “Cap-Gap” Issues for F-1 Students
Employers should consider whether they wish to employ an F-1 student for an extended period of time beyond the period authorized by OPT or CPT. If continued employment is a likely, or even possible, scenario, exploration should be made into other nonimmigrant work-authorized categories so that any gaps in employment authorization may be avoided while the F-1 student’s status is being changed.
In most cases, the only option for F-1 students will be to change to H-1B status, designated for workers in “specialty occupations.” Due to the annual H-1B cap, a decision to change to this status will often need to be made several months prior to the student reaching his or her OPT or CPT work authorization limit. If the decision is not made soon enough, the student could be “hit by the cap,” making him or her ineligible to work for several months.
To take a common example:
Student begins working at Company on June 15, 2014 pursuant to OPT, which is granted for one year until June 15, 2015.
On October 2, 2015, Company decides that it would like to hire Student as a regular employee on a longer-term basis and decides to sponsor the student for an H-1B petition.
Because the annual H-1B cap was reached for Fiscal Year 2015 the day before, on the very first day of the fiscal year, the soonest Company will be able to file an H-1B for Student will be six months prior to the beginning of the next fiscal year on April 1, 2015.
Student will not be able to work for Company as an H-1B until the first day of Fiscal Year 2016, on October 1, 2016 (unless Student was granted H-1B status in the previous six years and has not left the United States for an entire year since that time).
Student has thus been "hit by the cap," resulting in a gap in employment authorization between June 15, 2015 and October 1, 2016.