What is Optional Practical Training?
Optional Practical Training ("OPT") is a benefit granted to foreign students in the US who hold F-1 student visa status (the most common visa status for students). OPT allows students to have up to 12 months of post-graduation work authorization. (Note that pre-graduation OPT is also possible; but this Guide limits discussion to post-graduation OPT.) Many students use their OPT to commence employment in the US after completing their studies as a means to obtain practical training in their field of study.
The Problem with OPT
There is not really a problem with OPT, but in the past (in stronger labor markets), individuals often ran out of OPT time (and thus work authorization) due to a lack of available employment visas. The H-1B visa category, the typical visa for a professional worker, is limited in number each year to approximately 65,000. The limited supply of H-1B visas each year was often inadequate to meet the demand for the H-1Bs. In 2008, for instance, H-1Bs for the upcoming year were used up in one day! Approximately 132,000 petitions for H-1Bs were filed on the first allowable filing day. That means that only about half of the individuals got an H-1B. Further, no one else would be able to get an H-1B until the next fiscal year. This meant an 18 month blackout period for any new H-1Bs. You can imagine the impact this had to companies' hiring, particularly in H-1B heavy high tech areas.
Lobbying efforts for more H-1B numbers were not successful; instead, relief came in the way of more OPT time. Under new provisions, certain F-1 students can get a 17 month extension of OPT time. This allows a total of 29 months of work authorization pursuant to Optional Practical Training which, importantly, is enough time to allow a company two cracks at getting an H-1B for their employee. (If the timing works out, sometimes three tries for an H-1B is possible by employing some other strategies, but those are not discussed in this Guide.) The new provisions, though, contain very specific information regarding which individuals are eligible for the additional OPT time (not all F-1 students with OPT can get it) and very specific requirements for properly maintaining this status. The new provisions mandate certain (and somewhat onerous) actions by the employer and the employee, and also introduce new provisions that apply to ALL F-1 students in OPT status.
Who is Eligible for OPT Extensions - Finally an Explanation as to Why They are Called STEM Extensions
The provisions for OPT extensions limit the benefit to individuals who have graduated from a US university (F-1 status in only for foreign students at US universities), in a STEM field. STEM stands for Science, Technology, Engineering, Mathematics. There are very specific degrees that are recognized as coming under the STEM umbrella. The document that foreign students are issued from the university (Form I-20) contains a code for the degree program. This code must be listed on the official list of STEM degrees for the student to be eligible for an extension of OPT time (to be called a STEM extension going forward). Therefore, it is important to check whether a student's field will qualify the student for a STEM extension. Students in non-STEM fields are not eligible for additional OPT time and are limited to the initial 12 months of OPT time.
The STEM Extension Process
A student may apply for a STEM extension only within 120 days of the end date of the initial 12 months of OPT. A student cannot obtain 29 months of OPT time from the start; it is always achieved by a 12 mo + 17 mo extension. The application process starts with the F-1 student securing a certified I-20 form from the Designated Student Officer (DSO) at the university. The provisions require that, to be eligible for a STEM extension, the F-1 student must be employed or have an offer of employment. Therefore, a letter confirming such employment is necessary for the student to present to the DSO. This letter can be crafted with the assistance of immigration counsel to ensure that it covers the necessary elements. This is an important change from earlier rules. In the past, employment of F-1 students on OPT was not enforced. The new provisions, however, now require a student with OPT to be working and certain periods of unemployment can render an F-1 student out of status.
Another STEM Extension Requirements You Need to Know
It is not enough for the F-1 student to have (1) graduated in a STEM field and (2) be employed or have an offer of employment. The new provisions also require that the employer be enrolled in and be in good standing with USCIS' E-Verify employment verification program. (E-Verify is an internet-based system operated by USCIS in partnership with the Social Security Administration and is a system that electronically compares information contained on the Employment Eligibility Verification form (Form I-9) with records in govt databases to help employers verify the identity and employment eligibility of newly-hired employees.) Participation in the E-Verify program is mandatory of employers in some states, but not in others. It is mandatory of employers of F-1 students seeking a STEM extension. A new application form has been published that now gathers the employer's name and the employer's E-Verify Company ID number when the STEM extension case is filed with the USCIS.
Yes, One More Eligibility Element to Be Checked
A critical element of the new provisions impacts ALL F-1 students and not just those in the STEM fields. In the STEM extension realm, it is an important element in determining STEM extension eligibility. As mentioned earlier, the new provisions limit acceptable periods of unemployment. Previously, while students with OPT were supposed to be working in order to maintain their status, the law did not specifiy how much time a student could remain unemployed without impacting his/her status. As a result, the law did not have any teeth to require that student with OPT actually work. The new provisions change this and now make clear that status is dependent on employment. Details on the limits of acceptable unemployment are provided in the following section.
How Much Unemployment is Acceptable?
Students in the initial 12 months of OPT, are allowed a maximum aggregate of 90 days unemployment. (Remember, the initial 12 mos are available to all F-1 students, not just students in STEM fields; this provision applies to all F-1 students.) Once a student has over 90 days aggregate unemployment, the student is deemed to have violated status and must either depart the US, change to another visa status, or apply to continue education as an F-1 student (no longer in OPT). STEM extension applications of students whose record shows over 90 days of unemployment will not be approved by the USCIS. (Information concerning periods of employment is contained in the student record maintained by the school's DSO, obtained via new reporting obligations of F-1 students as well as employers of F-1 students.) Students who are successful in obtaining a 17 month STEM extension are subject to a limit of 120 days aggregate unemployment (30 additional days from the original 90) before impacting status.
Eligibily is Met, What's Next?
If the F-1 student (1) has graduated from a US university in a STEM field, (2) is approaching 120 days before the expiration of the initial 12 mos of OPT, (3) has not had over 90 days of unemployment, and (4) is employed by or has an offer of employment from an employer that is enrolled and in good standing with USCIS' E-Verify program, then s/he can apply for a 17 mo extension of OPT time. I've already discussed the first step of getting a certified I-20 form from the student's DSO (Step 5 above). Once the certified form is obtained, then the application is prepared. The application is Form I-765 Application for Alien Employment Certification and is filed with the appropriate USCIS Regional Service Center. The form is filed with the necessary fee, photos of the applicant, and supporting documents.
Anything else? Yes! Important Reporting Requirements!
The new rules put in place significant reporting requirements, both by the employer and the employee/student. The student has obligations to report name or address changes and changes in employer or employer's address to his/her DSO. The student must also report in to the DSO every six months. An employer must report to the DSO within 48 hours if the student leaves employment. (48 hours!) The DSO must report all of the above in the SEVIS system. It is cricial that F-1 students with OPT be informed of these obligations, as well as for employers to have systems in place to ensure that terminations are timely reported to the DSO.
Tough Issues that Need an Immigration Attorney to Review
There are some issues that, while appearing straight forward, are not (welcome to the legal profession). For instance, calculating periods of unemployment can be complex. Is part-time employment permissible? (Yes.) What about non-paying jobs? (Ok.) What about a LOA? What about periods on the bench? These are issues that need to be discussed with a competent immigration attorney. Another issue that needs special attention is internatinoal travel. International travel is always tricky in an immigration context - travel at the wrong time can stymie a pending application. In the context of a STEM extension, it can cause the individual to become stuck outside the U.S. Again, speak to an immigration attorney! Finally, companies should seek immigration counsel to enroll in E-Verify and to deal with the inevitable Social Security mismatches and Tentative Nonconfirmations that ensue.