Many foreign nationals who attend school in the US are admitted under an F-1 Visa. The foreign national student must be accepted for enrollment by the school before applying for an F-1 Visa and must work closely with the institution’s Designated School Official (DSO) to obtain the proper paperwork and maintain status.
F-1 students must generally attend school full-time, with a small exception for Canadian citizens who reside in Canada. F-1 students must intend to depart the US at the end of their studies in the US. As a result, foreign nationals should be very careful if applying for a US Immigrant Visa (“green card”) if in F-1 status.
F-1 students may be permitted to work during school breaks, on campus, and/or part time during the school year. The DSO needs to approve any work authorization. In addition, certain F-1 students may be able to obtain valuable experience in their field through the use of Curricular Practical Training (CPT) and/or Optional Practical Training (OPT).
- If a student is authorized for CPT employment, no employment authorization card is required. The student’s SEVIS I-20 form will confirm CPT status. The duration is usually limited by semesters.
- If the F-1 student is authorized for OPT employment, the F-1 student must apply for an Employment Authorization Card (EAD) from the United States Citizenship and Immigration Service (USCIS), before working on OPT status. Processing times vary, but 90 days is not uncommon. OPT employment is limited to 1 year. OPT students are not permitted to be unemployed for more than 90 days.
F-1 STEM OPT
As of May 10, 2016, students who have attained a degree in a STEM field (science, technology, engineering, or math) are eligible for 24 months of additional OPT employment, in addition to the 1 year of OPT employment listed above. The student’s employer must have registered with E-Verify. To qualify, students must still be within their initial OPT period. Unlike regular OPT work authorization, STEM OPT applicants can continue working while their new EAD application is pending, even after the prior OPT EAD has expired.
Below is a summary of some of the more important provisions of STEM OPT status:
- If an F-1 student uses the 24 month STEM extension, and then enrolls in a higher-level degree program and completes the next degree, the student may be eligible to receive a new 24 month STEM extension in addition to the 12 months of OPT available to most F-1 students.
- In no event may a student be authorized for more than two lifetime STEM OPT extensions.
- The STEM practical training opportunity that is the basis for the 24 month OPT extension must be directly related to the degree that qualifies the student for the extension.
- STEM OPT extensions will be available to F-1 students in non-STEM degree programs if the F-1 student previously earned a STEM degree from an accredited US university and now works in a position related to their previous STEM degree.
- F-1 OPT students are allowed up to 90 days of unemployment during the initial 12 months of OPT. F-1 STEM OPT students are allowed an aggregate of 150 days of unemployment during the 24 month STEM extension. This aggregate includes any post-completion OPT time and any subsequent 24 month extension period.
- Students applying for STEM OPT extensions cannot use a volunteer experience as the basis of the extension.
- Students may seek practical training opportunities with start-up businesses so long as the employer meets all of the existing and new regulatory requirements. The student cannot provide employer attestations on their own behalf.
- In general, the STEM OPT student can only work for one employer at a time and must work for 20 hours per week or more, absent a vacation or a recognized leave of absence.
- To apply for STEM OPT, a student must complete an individualized form I-983 training plan and obtain the requisite signatures from the STEM employer before the Designated School Official (DSO) may recommend a 24 month OPT extension. The training plan must identify goals for the STEM opportunity, including specific knowledge, skills, and techniques that will be utilized, explain how those goals will be achieved, and explain how the training is directly related to the qualifying STEM degree. The plan must also describe the review process and the methods of oversight and supervision. Students will also be required to complete a yearly self-evaluation of their progress toward achieving the goals set forth in the training plan prior to the conclusion of the STEM training opportunity. The student, as well as the STEM employer, must sign the evaluation.
- F-1 STEM OPT employees must report any changes to their legal name, address, employer name, employer address, and/or loss of employment to their DSO within 10 days of the change. Additionally, students are required to complete a validation report every six months confirming that none of the information above has changed.
- The new rule introduces additional compliance requirements for employers, including:
- Reporting the termination or departure of a STEM OPT student to the DSO within five business days of termination or departure.
- Certifying training plans – Form I-983 must be completed by the student and include a training plan that must be signed and certified by an appropriate individual in the employer’s company, with signing authority, who works onsite at the employer where the student works.
- Providing terms and conditions for STEM practical training opportunities that are commensurate with the terms and conditions of employment for other similarly situated US workers in the same area of employment, including duties, pay, and hours. If the employer does not or has not recently employed more than two similarly situated US workers, the employer remains obligated to attest that the conditions of the STEM opportunity are commensurate with the terms and conditions of employment for other similarly situated US workers in the same area of employment. “Similarly situated workers” includes US workers performing similar duties subject to similar supervision with similar educational backgrounds, industry expertise, employment experience, levels of responsibility, and skill sets.
- Employers are forbidden from laying off US workers to hire a STEM OPT F-1 student.
- The employer that signs the training plan must be the same entity that employs the student and provides the practical training. This means that STEM OPT extensions will not be available for certain types of working arrangements, including multiple employer arrangements, sole proprietorships, employment through staffing agencies, and employment through consulting firms that provide labor for hire. In order to comply with the new requirements, staffing agencies and consulting firms will need to have a person on site at the end customer site monitoring the work of the student and provide the training.
- DHS may conduct a site visit to any employer to ensure that the employer possesses and maintains that ability and resources to provide structures and guided work-based learning experiences consistent with I-983. DHS will provide 48-hour notice of any site visit unless the visit is triggered by a complaint or evidence of non-compliance.
- A student meeting the eligibility requirements mentioned above may request a 24-month extension by filing form I-765 Employment Authorization Document (EAD) with the required fee and supporting documents up to 90 days prior to the expiration date of the students current OPT employment authorization. The student seeking a 24-month extension must properly file the I-1765 form within 60 days of the date the DSO enters the recommendation for the OPT extension. If a student timely files for a 24-month extension, and properly requests DSO recommendation, but the Employment Authorization Document (EAD) currently in the student’s possession expires prior to a decision on the student’s OPT extension, the student’s EAD is extended automatically for 180 days.
- Changing STEM OPT employers: If a student initiates a new practical training opportunity with a new employer during his or her 24-month OPT extension, the student must submit, within 10 days of beginning the new practical training opportunity, a new Form I–983 or successor form to the student’s DSO, and subsequently obtain a new DSO recommendation.
The period of time when an F-1 student’s status and OPT work authorization expire, through to the start date of their approved H-1B employment period, is known as the “Cap-Gap.” Cap-Gap occurs and is permitted by regulation, because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is the first five business days of April. The new H-1B cannot start until October 1st. Cap-Gap allows the F-1 student to remain employed from early April, until September 30th, as long as the H-1B remains pending.
- F-1 students applying for a new CAP subject H-1B whose F-1 OPT status expires between April 1st and October 1st have certain steps they should take:
- Get their SEVIS I-20 updated by the DSO to reflect a new end date of June 1st (unless their OPT expires after June 1st) after the new H-1B has been filed.
- If the H-1B is “waitlisted” the SEVIS I-20 should be extended to July 28th.
- If the H-1B is receipted the SEVIS I-20 should be extended to September 30th.
- If the H-1B is denied or withdrawn the OPT status ends 10 days after the date of the denial or withdrawal and a 60 day grace period begins.
- If the H-1B is still pending as of October 1st, there is no more OPT extension time available. In other words, the H-1B must be approved for employment to continue.
- If the new CAP H-1B is filed with a request for consular processing or port of entry, the OPT extensions mentioned above (“CAP GAP”) are unavailable.
- Pre-completion OPT students and CPT students are not eligible for Cap-Gap.
Duration of Status
An F-1 foreign student may remain in the US for the duration of his or her studies, as determined by the program. A student must have an endorsement on the back of his/her SEVIS I-20 within the past year, even with a valid Visa and ongoing program, in order to return to the US. F-1 students may remain in the US for an additional 60 days after the end of their program, or at the end of the Optional Practical Training, as applicable, to visit or tour the US, or prepare to leave the US. However, students should not travel internationally during this 60 day period, and the same is true if they are not working for a US employer when they have an OPT EAD.
The F-2 Visa is available to immediate family members (spouses and children under the age of 21) who are accompanying the F-1 to the US. The F-2 Visa is generally granted for the same period as the F-1 Visa holder. Children on F-2 Visas can attend school full time only from kindergarten until the 12th grade, after which, they must apply for their own F-1 Visa. An F-2 spouse may attend part-time vocational or recreational programs that do not result in a “full course of study.” Each F-2 Visa holder must be issued his/her own SEVIS I-20. F-2 Visa holders may not accept employment.