Module 4:   Employment and Practical Training


Introduction


Nonimmigrant students are admitted into the United States to study. For these students to work in the United States, specific authorization must be obtained. Not following the regulatory guidelines for employment authorization is a violation of status and could jeopardize a student’s ability to remain in the United States or return for future visits.

 

This module outlines the types of employment available to F-1 and M-1 nonimmigrant students and the authorization process for each type of employment. There are five lessons:

 

  Lesson 1: On-Campus Employment

  Lesson 2: Off-Campus Employment

  Lesson 3: Internship With an International Organization

  Lesson 4: Curricular Practical Training

  Lesson 5: Optional Practical Training

Lesson 1:  On-Campus Employment


Introduction


On-campus employment for F-1 students is work that takes place either at your school or at an off-campus location that is educationally affiliated with the school. The work can be for an on-campus commercial business (such as a bookstore or cafeteria) as long as the work directly provides services for students.

 

Employment cannot exceed 20 hours per week while school is in session, except in the rare case where the Secretary of DHS suspends this requirement due to emergent circumstances.

 

F-1 students may work full-time during breaks and vacations as long as they are planning to enroll full-time the next semester. The Internal Revenue Service (IRS) defines full-time on-campus employment as 40 hours per week.

Topic 1: Basic Guidelines for On-Campus Employment


This Topic answers the question: what qualifies as on-campus employment?

 

After completing this topic, you will be able to:

 

  Advise nonimmigrant students on what qualifies as on-campus employment

  Advise nonimmigrant students on the approval process

  Advise nonimmigrant students on the number of work hours allowed

You must consider two factors in an on-campus employment decision:

 

  Type and location of the employment

  Employment cannot displace a U.S. citizen or lawful permanent resident

 

On-campus employment is work that takes place either at your school or at an off-campus location that is educationally affiliated with your school.

 

Commercial work located on-campus that does not directly involve services to students (such as construction work) or is not contractually affiliated with the school does not qualify as on-campus employment. For example, F-1 students cannot work for a company that:

 

  Contracts with your school for something other than student services

  Does not contract with the school, even if the company is physically located on school property

Educational affiliation means the location is associated with your school's established curriculum. At the post-graduate level, the location must be related to research projects conducted by your school. If a company has multiple locations, F-1 students can work only at those locations educationally affiliated with your school.

 

Initial F-1 students do not have to wait for their program start date to begin work. Students can begin work up to 30 days before their program start date. If a student does not have a Social Security number, he or she must apply for a number. The student will need a certification letter from their DSO, and from the employer, to present to the Social Security Administration. For additional information on applying for a Social Security number, please see the Social Security and Tax Issues FAQ on our Web site www.ice.gov/sevis

Topic 2: DSO Guidelines for On-Campus Employment

You should encourage F-1 students to work with you to ensure that a position qualifies as on-campus employment. This Topic presents DSO guidelines for authorizing on-campus employment.

 

After completing this Topic, you will be able to:

 

•Provide a student with documentation to take to the Social Security Administration

•Understand what records the school must keep on file regarding a student’s on-campus employment

As a DSO, you need to do the following:

 

  Counsel a student concerning:

- The number of work hours allowed

- The type of employment allowed

- The need to maintain F-1 status

- Tax and Social Security implications

- Reporting changes in employment or hours worked

  Obtain a letter from the  prospective employer concerning the nature of the job and the number of work hours

  Provide the student with a letter certifying that the job qualifies as on-campus employment and that the student is in F-1 status for Social Security purposes

  Keep records of the student’s employment in the student’s file

  Report any unauthorized work, or excess work hours, by terminating the student’s SEVIS record for the reason of Unauthorized Employment

Lesson 2:  Off-Campus Employment


Introduction


Except as noted in the regulations, F-1 and M-1 students are prohibited from holding off-campus jobs. Only F-1 students may apply for special authorization to work off campus if they can substantiate severe economic hardship.

Topic 1: Requirements for Severe Economic Hardship


Off-campus employment is allowed only in cases of severe economic hardship or in emergent circumstances as defined by DHS. This Topic outlines the regulations and requirements governing off-campus employment for F-1 students.

 

After completing this Topic, you will be able to:

 

  Advise students on the basic requirements for off-campus employment

  Advise students on what circumstances qualify as severe economic hardship

One of the provisions of F-1 status is that prospective students must prove that they have the ability to pay for education costs and support while in the United States. This proof must be presented before an SEVP-certified school issues a Form I-20, as outlined in 8 CFR 214.3(k)(2).

 

Off-campus employment is granted, on a case-by-case basis, only to an F-1 student who can prove that new, unexpected circumstances have created severe economic hardship. These circumstances may include the following:

 

  Loss of financial aid due to no fault of the student

  Loss of on-campus employment if it is not the student’s fault and no other on-campus job is available

  Large increase in tuition or living costs

  Substantial decrease in the relative value of the currency that the student depends upon to pay expenses

  Unexpected changes in the financial condition of the student’s sources of financial support

  Unexpectedly large medical bills

  Other substantial, unexpected expenses

In addition to economic hardship, the following rules apply to off-campus employment:

 

  An F-1 student must be enrolled for at least one academic year before he or she is eligible to apply for off-campus work authorization.

  The student must be unable to obtain on-campus employment or the pay available from on-campus employment is insufficient to meet the student’s financial needs.

  You must recommend approval of each request and provide the F-1 student with a signed Form I-20. You are only required to sign Page one of the Form I-20 as the signature on Page three is only required for travel.

Topic 2: Employment Authorization for Off-Campus Employment


Unlike on-campus employment, off-campus employment requires DSO authorization in SEVIS and an application for employment authorization submitted by the F-1 student to USCIS. This Topic discusses your role and the student’s application process.

 

After completing this Topic, you will be able to:

 

  Understand the process for authorizing off-campus employment in SEVIS

  Advise students on the process for applying for employment authorization

  Understand what happens when an application for employment authorization is approved or denied

Applying for off-campus employment consists of the following steps:

 

  The student explains his or her economic hardship situation to you

  Upon determining that the situation meets the requirements for economic hardship, you will do the following:

- From the Student Information screen, click the Off-Campus Employment

- Enter the start date in the Employment Start Date field in MM/DD/YYYY format.

- Enter the end date in the Employment End Date field in MM/DD/YYYY format.

- Select an option from the Off-Campus Employment Type list.

- Enter the applicable comments in the Recommendation field

- Click Add Employment

- Print the student’s Form I-20

- Sign Page one of Form I-20

- Give the Form I-20 to the student

  The student will need to file a Form I-765, Application for Employment Authorization, with USCIS. (See the USCIS Web site for form and filing instructions.) There is a fee for the application. Make sure the student reads the form carefully and follows the instructions.

Approval

 

If a student's application for employment authorization is approved:

 

  USCIS enters the approval into CLAIMS, which updates the student's SEVIS record by:

- Changing the status of the application from pending to approved

- Entering the dates that the student is authorized to work off-campus

  USCIS sends the student a Form I-766, Employment Authorization Document, (EAD) with the dates the student is approved to work off-campus.

  SEVIS sends you an automatic alert that the application has been approved.

 

A student cannot begin work while his or her Form I-765 is pending with USCIS. Upon receipt of the EAD, a student is authorized to work up to 20 hours per week when school is in session and up to 40 hours per week during holidays or school vacation. It is important that the student understands and adheres to the amount of work hours allowed. Working more hours than authorized or beyond the dates authorized is a violation of status. In such cases, the DSO must terminate the student’s SEVIS record for Unauthorized Employment.

 

Authorization for off-campus employment authorization is granted in one-year increments. If an F-1 student needs to continue off-campus employment beyond one year, the student will need to re-apply to USCIS for employment authorization, with your recommendation. The application should be submitted at least 90 days - and not more than 6 months - before the current authorization expires. A student whose EAD card expires cannot continue to work even if awaiting a work authorization renewal.

Denial

 

If a student's application for employment authorization is denied, the following occurs:

 

  USCIS enters the denial into CLAIMS, which updates the student's SEVIS record by changing the status of the application from Pending to Denied.

  USCIS responds to the student’s Form I-765 with a notice of denial.

  SEVIS automatically sends you an alert stating that the application was denied.

Lesson 3:  Internship with an International Organization


Introduction


F-1 students may work as interns with an international organization. The internship must be with a recognized international organization within the meaning of the 59 Stat. 669, International Organization Immunities Act.  The opportunity offered must also be within the scope of the organization’s sponsorship.  

Topic 1: Basic Guidelines for Internship With an International Organization


You must be aware of certain specific guidelines governing internships with international organizations. This Topic outlines those guidelines.

 

After completing this Topic, you will be able to:

 

  Understand an F-1 student’s eligibility requirements for completing an internship at an international organization

  Understand what  must be considered before certifying a student’s eligibility for an internship at an international organization

Once authorized to work as an intern with an international organization, an F-1 student can work up to 20 hours per week while school is in session. A student can work full-time during holidays or school vacation.

 

Employment authorization is granted in one-year increments. If the internship continues beyond one year, the student must apply for continued employment authorization.

 

The application should be submitted at least 90 days - and not more than 6 months - before the current authorization expires. A student whose EAD card expires cannot continue to work even if awaiting a work authorization renewal.

Before you certify a student’s eligibility for an internship at an international organization, you must ensure that the student meets the following requirements:

 

  Is in F-1 status

  Is not a border commuter student

  Enrolled in a full course of study

  Has a written offer of employment from a qualifying international organization

 

You do not need to consider:

 

  Need or hardship

  Relationship between the internship and the student’s field of study

Topic 2: Application Process

Prior to commencing employment with an international organization, an F-1 student must receive employment authorization from USCIS. This Topic outlines the employment authorization application process.

 

After completing this Topic, you will be able to:

 

  Understand the process for recommending employment with an international organization in SEVIS

  Advise students on the process for applying for employment authorization

  Understand what happens when an application for employment authorization is approved or denied

An F-1 student must have a written offer of internship from an international organization. After you determine that the student is eligible and that the offer is from a recognized international organization, you will need to update the student’s SEVIS record. You must endorse an application for internship using the Off-Campus Employment function. On the off-campus employment screen, do the following:

 

  Check the block recommending authorization for employment

  Select International Organization from the drop-down list

  Add your recommendation in the notes

  Print the Form I-20 and sign Page one.

 

The F-1 student will need to submit a certification from the international organization that the proposed employment is within the scope of the organization’s sponsorship, and a Form I-20, signed within the last 30 days, to USCIS, along with the Form I-765, the appropriate fee and supporting documentation. (See the USCIS Web site for the form and filing information.)

Lesson 4:  Curricular Practical Training


Introduction


Curricular practical training (CPT) is defined to be alternative work/study, internship, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with a school.

Topic 1: Basic Guidelines for CPT


CPT is only available to F-1 students when it is an integral part of an established curriculum. In practical terms, “integral part of an established curriculum” means an opportunity must be required by the curriculum or, if not required, the student must receive credit for the training.

 

This Topic outlines the basic guidelines of CPT.

 

After completing this Topic, you will be able to:

 

  Understand what types of opportunities can be classified as CPT

  Understand the basic guidelines for CPT

F-1 students must be enrolled for one academic year before they are eligible for CPT. There is an exception to this requirement — graduate students whose programs require immediate participation in CPT.

 

In calculating the required one full academic year needed to be eligible for CPT, students can include time spent in other programs of study, if there was no break between the programs.

 

There is no restriction on the number of hours a student can work per week while in CPT.

Part-time CPT (20 hours or less per week) does not impact eligibility for OPT.

 

Once a student has completed 12 months of full-time CPT, he or she becomes ineligible for optional practical training, or OPT (which is covered in the next Topic) at that educational level. For example, if a student completes 12 months of full-time (40 hours or more per week) CPT as an undergraduate, the student is not eligible for OPT at the undergraduate level.

F-1 students are required to maintain status (status includes enrolling in a full course of study) while completing CPT. If a student seeks authorization for full-time CPT, you should ensure that the CPT opportunity is considered full-time enrollment by the school prior to authorizing it in SEVIS. It is common for schools to consider a full-time internship as full-time enrollment but you should confirm this is the case.

 

There is no restriction on compensation during CPT. Compensation is not a consideration when determining whether an opportunity qualifies as CPT.

Topic 2: Recommending CPT in SEVIS


As a DSO, you can authorize an F-1 student to participate in CPT. CPT must be recorded in a student's SEVIS record before the student can begin work. DHS adjudication is not required, and there is no need for an EAD.

 

After completing this topic you will be able to understand the process for recommending CPT in SEVIS.

To authorize CPT in SEVIS, select the CPT Employment Authorization option from the student’s information page. On the CPT Employment page, select New CPT Employment. You will then get the Adding New CPT Employment screen. Enter the following information:

 

  Start date

  End date

  Whether the opportunity is full time or part time

  Employer’s name

  Employer’s address

  How the CPT applies to the student’s curriculum

  Any additional remarks (optional)

After recording the CPT:

 

  Print the student's revised Form I-20

  Sign Page one

  Give the original Form I-20 to the student

 

Page three of the Form I-20 serves as proof of authorization to engage in CPT. It contains the following information:

 

  Employer’s name

  Employer's location

  Dates that the student is authorized to work

  Employment status (full time or part time)

 

To update the CPT employment information, select the CPT Employment Authorization option from the student’s information page. On the CPT Employment page, select edit from the Command List that appears next to the name of the employer. You will then be able to update any of the CPT information.

Lesson 5:  Optional Practical Training


Introduction


Optional practical training (OPT) is another type of practical training available to nonimmigrant students. It differs from CPT in the following ways:

 

  OPT is not an integral part of a student’s academic program

  OPT requires DHS adjudication

 

There are different OPT guidelines for F-1 and M-1 students. Technically, the training available to M-1 students is only “practical training.” However, for the purposes of this lesson, it will be referred to as OPT.

Topic 1: Optional Practical Training for F-1 Students


OPT is available to F-1 students while completing their program of study or upon completion of their program of study. This Topic outlines the basic guidelines for F-1 OPT and provides information on the employment authorization process.

 

After completing this topic, you will be able to:

 

  Advise students on guidelines for F-1 OPT

  Understand the process for recommending OPT in SEVIS

  Advise students on the process for applying for employment authorization

  Understand what happens when an application for employment authorization is approved or denied

General F-1 Student OPT Guidelines

 

F-1 students can participate in OPT that is directly related to their major area of study while they are enrolled in school (pre-completion) and upon completion of their program of study (post completion). Certain students are also eligible for a 17-month extension of post-completion OPT. The extension is covered in greater detail in Topic 2.

 

As is the case with CPT, students must be enrolled full time for a full academic year before being eligible for OPT — there is no exception to this requirement. However, F-1 students can apply for pre-completion OPT as early as 90 days prior to completion of a full academic year.

Specific guidelines for OPT are as follows:

 

  A student can participate in a total of 12 months of OPT at each education level.

  Certain students are eligible for a 17-month extension of post-completion OPT.

  Part-time work counts toward the maximum 12 months at one-half the rate of full-time employment.

  OPT does not count as part of a nonimmigrant student’s required full-time course load.

  A student may work up to 20 hours per week when classes are in session.

  A student may work more than 20 hours per week when classes are not in session.

  A student does not need to have a job offer to be authorized for OPT.

  A student is limited to an aggregate of 90 days of unemployment during post-completion OPT and 120 days of unemployment if granted the 17-month extension.

  You are responsible for reporting known changes in a student’s name and address, employer name and address, and known instances of a student’s deliberate failure to report to work.

Pre-completion OPT vs Post-completion OPT

 

The OPT rule published on April 8, 2008, made certain changes to OPT including distinguishing periods of pre-completion OPT from post-completion OPT. This change mainly impacts students who have completed all coursework for their program of study, excluding thesis or equivalent. In the past, students in this situation would apply for pre-completion OPT and roll it into post-completion OPT. Students must now choose between pre-completion OPT and post-completion OPT.

 

If a student in this situation applies for pre-completion OPT, he or she can work full time, is not subject to the unemployment provisions, and may receive a program extension. However, the student cannot apply for the STEM extension from a period of pre-completion OPT and is not eligible for the cap-gap extension of OPT.

 

Alternatively, if a student in this situation applies for post-completion OPT, he or she can work full time, is eligible for the cap-gap extension, and can apply for the STEM extension, if eligible. However, a student is subject to the unemployment provisions and is unable to receive an extension of his or her program.

Application Process

 

As previously indicated, a student must be enrolled full time for one full academic year to be eligible for OPT but may apply for employment authorization as early as 90 days prior to completion of a full academic year. In calculating the required one full academic year needed to be eligible for OPT, students can include time spent in other programs of study, if there was no break between the programs.

 

A student applying for post-completion OPT must submit the application for employment authorization prior to the end of the 60-day grace period after his or her program end date. If a student files the application for employment authorization beyond the grace period, USCIS will deny the application. SEVP recommends that you instruct students to submit the application for employment authorization as early as possible.

 

As DSO, you need to do the following:

 

  Enter the recommendation in the student’s SEVIS record

-Use the remarks area to explain how the work relates to the student's program of study (employer information is optional)

-Print the student's Form I-20

-Sign Page one of the Form I-20

-Provide the original Form I-20 to the student

  Instruct the student file the required documentation with the appropriate USCIS Service Center.  A complete application must include the following:

-The signed Form I-20

-A completed Form I-765

-The USCIS adjudication fee

-Any supporting documentation for the application

The student may mail the application to the USCIS Service Center or use E-Filing.

 

SEVIS uses the term Requested to indicate that a DSO has recommended OPT but the USCIS Service Center has not yet received the student’s application. The request may be canceled by SEVIS after a period of 180 days in Requested status. SEVIS uses Pending to indicate a student’s application has been accepted by USCIS but not adjudicated.

 

NOTE: While a student waits for USCIS approval or denial of the application for employment authorization, the student must still be prepared to leave the United States 60 days after his or her program end date in case the application for employment authorization is denied. It is possible that an application will remain in Pending status with USCIS beyond a student’s 60 day grace period. Should this occur, the student must be prepared to depart the United States immediately if the application is denied.

 

Approval

 

If a student's application for employment authorization is approved, the USCIS database enters the approval into the student's SEVIS record by:

 

  Changing the status of the application from Pending to Approved

  Entering the inclusive dates that the student is authorized for OPT

 

The student’s SEVIS record remains in Active status for the duration of the post-completion OPT, plus 60 days. USCIS also sends the student a Form I-766 (EAD) stating the dates the student is approved for OPT. An automatic SEVIS alert lets you know the application has been approved.

 

With the EAD, the student can work without jeopardizing status, as follows:

 

  Up to 20 hours per week when classes are in session

  More than 20 hours per week when classes are not in session

  More than 20 hours per week during post-completion OPT

Denial

 

If an F-1 student's application for employment authorization is denied, the USCIS database updates the student's SEVIS record by changing the application status from Pending to Denied. USCIS also sends the student a Notice of Denial.

 

An automatic SEVIS alert lets you know that the application was denied.

 

A student cannot work without an approved EAD.

Length of Stay for Students with Post-Completion OPT

 

An F-1 student is allowed to remain in the United States until the expiration date shown on the EAD plus 60 days to prepare for departure. All OPT must be completed within 14 months of the program end date. This provides a two-month buffer to allow for adjudication time. However, if it takes three months after the program end date for USCIS to adjudicate the application, the student will be able to work for only 11 months. In no case will a student be approved to work more than 12 months of OPT.

 

Students cannot begin work while their application for employment authorization is pending. If USCIS does not approve or deny the application within 90 days, the student should contact USCIS regarding the application.

 

The April 2008 OPT rule introduced periods of authorized unemployment for F-1 students on post-completion OPT. Students are limited to a period of 90 days of authorized unemployment during the initial 12-month period of post-completion OPT. If a student exceeds the period of authorized unemployment, it is considered a violation of status. It is not the responsibility of DSOs to determine whether a student has exceeded this limit. That is the responsibility of DHS. If a student does exceed the limit, it could impact his or her eligibility for future immigration benefits or ability to change status.

Topic 2: 17-Month STEM Extension for F-1 Students

On April 8, 2008, DHS, through SEVP, published an Interim Final Rule titled, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions.

 

This rule allows F-1 students on a period of post-completion OPT (after earning a bachelor’s, master’s, or doctoral degree in a science, technology, engineering, or math (STEM) field included in the list of designated STEM degrees) to apply for a 17-month extension of their post-completion OPT (known as the STEM extension). The list of STEM designated degree programs is found on the SEVP Web site (www.ice.gov/sevis).

 

In addition to completing a STEM designated degree program, in order to be eligible for the STEM extension, students must have a job or a job offer from an employer registered and in good standing with the DHS E-Verify (referred to as an E-Verify employer). You do not have to confirm that a student is working (or will work) for an E-Verify employer. That determination will be made by a USCIS adjudicator. The employer’s E-Verify account information is required on the Form I-765, Application for Employment Authorization, for students applying for the STEM extension.

DSO Responsibilities in Recommending the STEM Extension

 

There are certain eligibility requirements for the STEM extension that do not exist for normal OPT including degree, field of study, and employer information. Before recommending a student for the STEM extension in SEVIS, you should confirm that:

 

  The student’s education level shown in SEVIS is bachelor’s, master’s, or doctoral.

  The name of the student’s major shown in SEVIS is on the STEM designated degree program list.

  SEVIS shows the student is on an approved period of post-completion OPT.

  The employer name and address entered into SEVIS are entered exactly as provided by the student.

Student Responsibilities During the STEM Extension

 

While completing the STEM extension, students must maintain status. This is done by working in a paid position for an E-Verify employer in a related field of study for at least 20 hours per week. Students completing the STEM extension are limited to an aggregate of 120 days of unemployment during the entire period of post-completion OPT (regular post-completion OPT and STEM extension OPT).

 

A student must report to you (within 10 days) any change in the following:

 

  Legal name

  Residential and mailing address

  E-mail address

  Employer name

  Employer address

  Job title or position

  Supervisor name and contact information

  Employment start-date

  Employment end-date

 

The student must also report to you every six months, confirming the information listed on the previous slide; even if there have been no changes. The requirement to report continues if the student’s 17-month STEM extension is extended further by the automatic cap-gap extension, which is discussed later in this lesson.

Application Process

 

The application process for the 17-month STEM extension is similar to the application process for normal OPT. A student applying for the extension must submit the application for employment authorization prior to the end of his or her approved period of post-completion OPT.  If a student files the application after the end of post-completion OPT, USCIS will deny the application. SEVP recommends that you instruct students to submit the application for employment authorization as early as possible. USCIS will accept the application up to 120 days prior to the requested employment start date.

 

As DSO, you need to do the following:

 

  Enter the recommendation for the extension in the student’s SEVIS record

-Use the remarks area to explain how the work relates to the student's program of study

-Enter the employer information exactly as provided by the student

-Print the student's Form I-20

-Sign Page one of the Form I-20

-Provide the original Form I-20 to the student

  Instruct the student to file the required documentation with the appropriate USCIS Service Center.  A complete application must include the following:

-The signed Form I-20

-A completed Form I-765 - student must enter employer’s name as listed in E-Verify and the employer’s E-Verify company identification number or valid E-Verify client company identification number

-The USCIS adjudication fee

-Any supporting documentation for the application

 

The request will change to Pending in SEVIS when SEVIS receives notification from USCIS that the student application has been accepted and entered into CLAIMS by a USCIS Service Center.

 

Students must file the application for the extension prior to the end of their post-completion OPT. Students who file their STEM extension applications with USCIS in a timely manner may continue working while their applications are pending for 180 days or the date of the decision, whichever is earlier. This interim extension minimizes disruptions in employment.

Approval

 

If a student's application for employment authorization is approved, the USCIS database is updated and, through an interface with SEVIS, sends the approval information into the student's SEVIS record by:

 

  Changing the status of the application from Pending to Approved

  Entering the dates that the student is authorized for OPT

 

The student’s SEVIS record remains in Active status for the duration of the OPT extension, plus 60 days. USCIS also sends the student an EAD. An automatic SEVIS alert lets you know the application has been approved.

 

With the EAD, the student can work without jeopardizing status.

 

Denial

 

If an F-1 student's application for employment authorization is denied, the USCIS database updates the student's SEVIS record by changing the application status from Requested to Denied. USCIS also sends the student a Notice of Denial.

 

An automatic SEVIS alert lets you know that the application was denied.

Topic 3: Automatic Cap-Gap Extension of OPT


Many employers file H-1B petitions on behalf of F-1 students after the student’s post-completion OPT expires. Under USCIS regulations, an employer cannot file, and USCIS cannot approve, an H-1B petition submitted earlier than six months before 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 petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that a student may start approved H-1B employment is October 1.

 

Prior to the OPT rule published in April 2008, F-1 students who were the beneficiaries of approved H-1B petitions, but whose periods of authorized stay (including authorized periods of post-completion OPT and their grace period) expires before October 1, had to leave the United States. The students would then have to apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status. The most common situation occurred when a student’s OPT ended in the spring or early summer, and his or her F-1 status expired 60 days after that, leaving a gap of several months before the start of H-1B status on October 1.  The new rule bridges this gap between F-1 status and the start of H-1B status.

The new OPT rule automatically extends the duration of status and any employment authorization for post-completion OPT for an F-1 student who is the beneficiary of a pending or approved H-1B petition and request for change of status to October 1.

 

The cap-gap extension is automatic. Students do not need to file an application for employment authorization for this period. Accordingly, students do not receive an EAD for the cap-gap extension of OPT. Students can receive an updated Form I-20 to show the extension of OPT through the cap gap. This may require you to work with the SEVIS Help Desk to update the student’s SEVIS record to include the cap-gap extension.

 

For more details see the OPT guidance on the SEVP Web site at www.ice.gov/sevis.

Topic 4: Practical Training for M-1 Students


Employment for M-1 students is limited to post-completion practical training. The M-1 regulations are very specific on employment opportunities for M-1 students. This Topic outlines the basic guidelines for M-1 practical training and provides information on the employment authorization process.

 

After completing this Topic, you will be able to:

 

  Advise students on guidelines for M-1 OPT

  Understand the process for recommending OPT in SEVIS

  Advise students on the process for applying for employment authorization

  Understand what happens when an application for employment authorization is approved or denied

M-1 Student OPT Guidelines

 

OPT can take place only after a student has completed his or her course of study (post-completion). Recommendations for OPT authorization must be entered into SEVIS within 90 days of a student’s program end date. Recommendations cannot be entered after the program end date.

 

A student is granted one month of OPT for every four months of study in M-1 status. The total time in OPT cannot exceed six months.

Application Process

 

As DSO, you need to do the following:

 

  Enter the request in the student’s SEVIS record

  Print the student's Form I-20

  Sign Page one of the Form I-20

  Give the Form I-20 to the student

 

The student sends the required documentation to USCIS for adjudication before his or her program end date. This documentation should include the following:

 

  The signed Form I-20

  A completed Form I-765

  Fee (check the USCIS Web site for current fee information)

 Other supporting documentation

 

If a student’s period of authorized stay in the United States as listed on the Form I-94  will end before the requested OPT end date, the student must also file a Form I-539, Application to Change/Extend Nonimmigrant Status, concurrently.

 

While a student waits for USCIS approval or denial of the application for employment authorization, the student must still be prepared to leave the United States 30 days after his or her program end date in case the application for employment authorization is denied. It is possible that an application will remain in Requested status with USCIS beyond a student’s 30 day grace period. Should this occur, the student must be prepared to depart the United States immediately is the application is denied.

Approval

 

The USCIS database enters the approval into the student's SEVIS record by:

 

  Changing the status of the application from Requested to Approved

  Entering the inclusive dates that the student is authorized for OPT

 

USCIS sends the student a Form I-766 (EAD) stating the dates the student is approved for OPT as well as a new Form I-94 showing the extended period of stay. An automatic SEVIS alert lets you know the application has been approved.

 

Denial

 

If the student's application for employment authorization is denied, the USCIS database updates the student's SEVIS record by changing the application status from Pending to Denied. USCIS also sends the student a notice of denial.

 

An automatic SEVIS alert lets you know that the application was denied.

Summary


Module 4 introduced employment and training opportunities available to F-1 and M-1 students and eligibility requirements for each type. The module also provided instructions for DSOs to authorize or recommend each type and outlined the adjudication process and adjudication outcomes.