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.
Work Authorization
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.
F-1 Frequently Asked Questions
OPT Frequently Asked Questions
What is OPT?
OPT stands for “Optional Practical Training. ” It is a form of work authorization granted to foreign students who are in the U.S. in temporary F-1 (“student visa”) status. Students granted OPT work authorization may work for any U.S. employer, so long as the opportunity offered to the student by the employer is related to the student’s field of academic study. OPT is granted for 12 months initially, and may be extended for a total of up to 36 months for students graduating in STEM fields (Science, Technology, Engineering or Mathematics), provided the students are working for employers enrolled in the government’s E-Verify program, the employer has developed a training plan for the student, and certain other conditions are met.
What evidence must the student have to show that they have valid OPT work authorization?
Except in certain limited circumstances, the student must have a valid EAD (employment authorization document) to work pursuant to OPT.
When can a student apply for OPT work authorization?
Students may apply for and obtain OPT work authorization after they have completed one year of academic study in the U.S. Most students obtain “post-completion” OPT (after graduation), which must be applied for up to 90 days before and 60 days following graduation. Some students also apply for “pre-completion” OPT which allows them to work prior to graduation, during school breaks.
What are the chances of an F-1 student with OPT being selected in the H-1B lottery?
Students may apply for and obtain OPT work authorization after they have completed one year of academic study in the U.S. Most students obtain “post-completion” OPT (after graduation), which must be applied for up to 90 days before and 60 days following graduation. Some students also apply for “pre-completion” OPT which allows them to work prior to graduation, during school breaks.
Can a student with OPT work indefinitely in the U.S.?
No. OPT is initially limited to 12 months. Graduates of STEM fields may obtain a 24- month extension following the initial 12 months of OPT, provided the employer enrolls in the government’s E-Verify program, implements a STEM OPT Training Program designed to ensure that the training is fulfilling the purpose of the OPT program, and certain other conditions are met.
Is it possible to switch a student working pursuant to OPT to H-1B status?
If the student working pursuant to OPT qualifies for H-1B status, it may be possible to switch the student to H-1B status before he/she reaches the end of his/her OPT work authorization period. However, given the very high demand and limited supply of new H-1Bs, the U.S. Citizenship and Immigration Services (USCIS) often conducts a lottery to select new H-1Bs for the following fiscal year. This lottery usually takes place in the first week of April, which is the earliest that new H-1B petitions can be filed for the following fiscal year. It cannot be taken for granted that a student with OPT work authorization will be selected in the lottery, or that the student will be able to obtain H1B work authorization before their OPT expires. If the student has graduated from a U.S. school with an advanced degree (Master’s or higher) they will generally have a much higher chance of being selected in the lottery.
What is the “H-1B Cap Lottery”?
When more H-1B cap-subject petitions are filed than H-1B numbers are available in a given fiscal year, USCIS conducts a random computerized selection process (“the H-1B cap lottery”) to select which petitions will be accepted for processing. If the quota is met within the first 5 business days during which employers are eligible to file cap subject petitions, i.e. the first 5 business days of April, USCIS processes all H-1B petitions that are received during that 5-day period in lottery.
What is “H-1B Cap Filing Season”?
“H-1B Cap Filing Season” is the “season” each year when employers are eligible to file new H-1B petitions that are subject to the annual quota, or “cap” . The season starts on April 1st – 6 months before the start of the following fiscal year which begins on October 1st . The length of the season depends on how long it takes for available H-1B numbers to run out (see chart below). Where there is high demand for skilled workers in a particular year, the season is shorter. By regulation, even if the quota is exceeded on the first day that employers are eligible to file, i.e., April 1st, the season will last 5 business days starting from that date that the quota is reached. As explained below, USCIS holds a lottery to select which petitions received during that 5-day period will be accepted for processing.
What are the chances of an F-1 student with OPT being selected in the H-1B lottery?
This depends on a number of factors, including the demand for new ‘cap-subject’ H1Bs in a particular fiscal year, and whether the student has graduated from a U.S. school with an advanced degree (Master’s or higher.) There are 85,000 new H-1Bs available each year. Of these, 20,000 are reserved for students with U.S. advanced degrees. Of the remaining 65,000, nationals of Chile and Singapore get first shot at 6,800 pursuant to Free Trade Agreements with those two countries (as “H-1B1” workers). As a result, in years when the economy is good, and demand for skilled worker is high, the likelihood of being selected in the lottery decreases, particularly for graduates without a U.S. advanced degree. The chart below illustrates the number of H-1B submissions over the last few years.
What additional requirements must an employer meet to employ students pursuant to STEM OPT extensions?
In order for an employer to employ a student pursuant to an F-1 STEM OPT extension, the employer must meet the following requirements:
E-VERIFY ENROLLMENT
The employer must be enrolled in the Department of Homeland Security’s E-Verify program, which requires the employer to electronically verify all new hire employees’ authorization through an automated online system maintained by the government, in addition to completing the I-9 employment verification form. The employer must also comply with additional notice and attestation requirements. See www.uscis.gov/everify for more information about the E-Verify program.
COMPLETION OF STEM OPT TRAINING PLAN
Starting May 10, 2016, the training plan must be completed using Form I983 and be signed by a person with authority to sign on behalf of the employer. The plan must identify the goals for the training, including specific knowledge, skills, or techniques that will be imparted to the student, and explain how those goals will be achieved through the work-based learning opportunity with the employer. The plan must also describe a performance evaluation process, and describe methods of oversight and supervision. Additionally, the plan must demonstrate how the training is related to the student’s STEM field.
ADDITIONAL ATTESTATIONS TO SAFEGUARD U.S. WORKERS
The employer must make additional attestations confirming that (1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full-time or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives. These attestations are made on the I-983 training plan form.
ADDITIONAL REPORTING REQUIREMENTS
The employer must also agree to report the termination of any student employed pursuant to the STEM OPT extension within 5 days of the student’s departure.
STEM OPT Frequently Asked Questions for Students
What is the total duration of STEM OPT that I can be granted?
As of May 10, 2016, eligible students may apply for 24-month STEM OPT extensions. In combination with the 12-month post-completion OPT that must take place before an application may be made for STEM OPT, qualifying students may be authorized for up to 36 months of post-completion OPT.
Are there filing deadlines for STEM OPT extensions?
Generally, a student must file a STEM OPT extension request: (1) Before the expiration of his or her 12-month OPT period; and (2) No later than 60 days from the date of the Designated School Official (DSO)’s extension endorsement.
Are there filing deadlines for STEM OPT extensions?
As of May 10, 2016, students are entitled to a total of no more than two STEM OPT extensions. A second period of STEM OPT cannot take place immediately after the first of STEM OPT period. A second application for a 24-month STEM OPT extension must be based on a higher level degree than the degree that was the basis for the student’s first STEM OPT extension. The extension must also follow 12 months of post completion OPT.
If I received a qualifying STEM degree prior to my more recent degree (e.g. I received a B.S. in Computer Science and recently completed an MBA), can I apply for a STEM OPT extension based on the prior degree under the new rule?
Yes, so long as the following conditions are met:
The prior degree was conferred no more than 10 years before a DSO recommendation for a STEM OPT extension is issued based on that degree;
The degree was conferred by an accredited U.S. educational institution;
The practical training opportunity that is currently offered is directly related to the prior STEM degree; and
The prior degree was actually conferred. “All but thesis or dissertation” will not qualify
Do I have reporting obligations?
Yes. Students are required to confirm the following information with the DSO every six months:
Legal name
Address;
Employer name and address;
Report of current employment/practical training experience.
Students are further required to complete two self-evaluations during the 24-month STEM OPT extension period. The first self-evaluation must be completed within the first 12 months, and the second must be completed upon the conclusion of the STEM OPT period. Evaluation forms are part of Form I-983, and they must be signed by the student and his or her immediate supervisor. The evaluations must then be submitted to the DSO no later than 10 days following the conclusion of the reporting period or conclusion of the practical training opportunity.
Can I travel during STEM OPT?
Students on STEM OPT extensions (including those whose application for a STEM OPT extension is pending) may travel abroad and seek reentry in F-1 status during the STEM OPT extension period if they have a valid F-1 visa that permits multiple entries and a current Form I-20 endorsed for reentry by the DSO within the last 6 months.
Can I apply for a STEM OPT extension if I have a degree from any U.S. educational institution?
No. The new rule requires that the degree be from a U.S. educational institution accredited by an accrediting agency and recognized by the Department of Education at the time of application. The institution must be located domestically. Degrees granted by a U.S. institution’s overseas campus will not qualify.
How do I know if my degree is a qualifying STEM degree?
As of May 10, 2016, a new list will govern which degrees are within the qualifying CIP code that appears on the DHS STEM OPT Degree Program list.
Can I apply for a STEM OPT extension if I have not yet completed my thesis or dissertation?
Yes. So long as a student has completed the degree, or has completed all course requirements but is still completing his or her thesis or dissertation, a student may apply for a STEM OPT extension if all other requirements are met.
If I change employers, become unemployed, or my company faces corporate restructuring, do I need to notify anyone?
Yes. You must notify the DSO within 10 days of any material change to your employment. If there are any material changes or deviations from the training plan described in the Form I-983 or successor form occurs, the student employer must sign a modified Form I-983 or successor form reflecting the material change(s) or deviation(s). Material changes further include any decrease in hours, any change that renders an employer attestation inaccurate, or any information on Form I-983 or successor form inaccurate. You and your employer must ensure that the modified Form I-983 or successor form is submitted to the student’s DSO at the earliest available opportunity. Employers are required to report the termination or departure of a student to the DSO during the authorized period of OPT within 5 business days.
How many days am I permitted to be unemployed?
Students are permitted a 90-day maximum period of unemployment during the initial period of post-completion OPT. An additional 60 days (for a total of 150 days) of unemployment is allowed for a student who obtains a 24-month STEM OPT extension.
STEM OPT Frequently Asked Questions for Employers
What is OPT?
OPT stands for “Optional Practical Training. ” It is a form of work authorization granted to foreign students who are in the U.S. in temporary F-1 (“student visa”) status. Students granted OPT work authorization may work for any U.S. employer, so long as the opportunity offered to the student by the employer is related to the student’s field of academic study. OPT is granted for 12 months initially, and may be extended for a total of up to 36 months for students graduating in STEM fields (Science, Technology, Engineering or Mathematics), provided the students are working for employers enrolled in the government’s E-Verify program, the employer has developed a training plan for the student, and certain other conditions are met.
What is the total duration of STEM OPT a student can be granted?
As of May 10, 2016, eligible students may apply for 24-month STEM OPT extensions. In combination with the 12-month standard post-completion OPT that must take place before an application may be made for STEM OPT, qualifying students may be authorized for up to 36 months of post-completion OPT.
Are there filling deadlines for STEM OPT extensions?
Generally, a student must file a STEM OPT extension request before the expiration of his or her 12-month OPT, and no later than 60 days from the date of the Designated School Official (DSO)’s extension endorsement.
What requirements do an employer need to meet in order to employ students pursuant to STEM OPT extensions?
In order for an employer to employ a student pursuant to an F-1 STEM OPT extension, the employer must meet the following requirements:
E-VERIFY ENROLLMENT
The employer must be enrolled in the Department of Homeland Security (DHS)’s E-Verify program, which requires the employer to electronically verify all new hire employees’ authorization through an automated online system maintained by the government, in addition to completing the I-9 employment verification form. The employer must also comply with additional notice and attestation requirements. See uscis.gov/e-verify for more information about the E-Verify program.
COMPLETION OF STEM OPT TRAINING PLAN
The training plan must be completed using Form I-983 and be signed by a person with authority to sign on behalf of the employer. As described in further detail below, the plan must identify the goals for the training, including specific knowledge, skills, or techniques that will be imparted to the student, and explain how those goals will be achieved through the work-based learning opportunity with the employer. The plan must also describe a performance evaluation process and describe methods of oversight and supervision. Additionally, the plan must demonstrate how the training is related to the student’s STEM field.
ADDITIONAL REPORTING REQUIREMENTS
The employer must also agree to report the termination of any student employed pursuant to the STEM OPT extension within 5 days of the student’s departure.
ADDITIONAL ATTESTATIONS TO SAFEGUARD U.S. WORKERS
The employer must make additional attestations confirming that: (1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives. These attestations.
What is required for the STEM OPT training program?
Employers are now required to submit a training program in support of the student’s STEM OPT extension application. The specific details to be provided by the employer include:
THE STUDENT’S ROLE
The employer should describe the student’s role and training program’s direct relationship to the student’s qualifying STEM degree;
GOALS AND OBJECTIVES
The employer must describe the specific skills, knowledge, and techniques the student will learn or apply; how the student will achieve the goals set out for his or her training; and the training curriculum including the timeline;
EMPLOYER OVERSIGHT
The employer must explain how it provides oversight and supervision of individuals filling positions similar to that being filled by the named F-1 student. If the employer has a training program or related policy in place that controls such oversight and supervision, a description of this program or policy may suffice to answer the question; and
MEASURES AND ASSESSMENTS
Explain how the employer measures and confirms whether individuals filling positions such as that being filled by the named F-1 student are acquiring new knowledge and skills. If the employer has a training program or related policy in place that controls such measures and assessments, a description of this program or policy may suffice to answer the question.
We will work with employers to complete Form I-983 and design training plans for students that meet the above listed requirements, as well as templates that may be used for future employees applying for STEM OPT extensions.
What are the employer’s attestation requirements?
The final rule requires that employers sign an attestation and a certification on Form I983. Among the new attestation requirements, the employer must:
Ensure the student's training opportunity is directly related to the STEM degree, the position achieves the objectives of the training program, and the student will receive on-site supervision and training by experienced and knowledgeable staff;
Confirm the student will not replace a full- or part-time, temporary or permanent U.S. worker;
Confirm the terms and conditions of the training opportunity (including duties, hours, and compensation) are commensurate with those of similarly situated U.S. workers at the company or, if the employer does not employ and has not recently employed more than two similarly situated U.S. workers in the area of employment, the terms and conditions of other similarly situated U.S. workers in the area of employment.
Report the termination/departure of a student within 5 business days to the DSO during the authorized period of OPT; and
Notify the DSO regarding any material changes to the training plan.
What are the specific wage and working condition requirements under the training period?
Employers must ensure that the terms and conditions of a practical training opportunity during the 24-month STEM OPT extension period, including duties, hours, and compensation, are commensurate with terms and conditions applicable to the employer’s similarly situated U.S. workers in the area of employment. We will work with employers to develop a system to document the basis of their attestation to ensure that these conditions are met.
What can we expect from employer site visits?
DHS has the discretion to conduct site visits to verify whether the training plans, conditions, and terms of employment for STEM-OPT extension employees are being met. DHS visits may include record review, questions for the supervisor, and may take up to five hours per employer.
Can a student travel on OPT?
Students on STEM OPT extensions (including those whose application for a STEM OPT extension is pending) may travel abroad and seek reentry in F-1 status during the STEM OPT extension period if they have a valid F-1 visa that permits multiple entries and a current Form I-20 endorsed for reentry by the DSO within the last 6 months.
If the employer hires or fires a student on STEM OPT, or the employer faces corporate restructuring, does anyone need to be notified?
Yes. The employer must report the termination or departure of a student within 5 business days to the DSO during the authorized period of OPT. In addition, if there are any material changes or deviations from the training plan described in the Form I-983 or successor form, the student and employer must sign a modified Form I-983 or successor form reflecting the material change(s) or deviation(s). Material changes include any decrease in hours, any change that renders an employer attestation inaccurate, or any information on Form I-983 or successor form inaccurate.