F-1 visas are issued to individuals who have been admitted to a language or academic program at a USCIS-approved school. Upon admission to the U.S., 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 US lawfully so long as he/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 twenty-one who accompany an F-1 holder to the U.S. 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 U.S.
F-1 visa holders are not allowed to work while they are in the U.S. 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/she will be ineligible to receive OPT benefits following graduation. Students seeking OPT work authorization must obtain an Employment Authorization Document from the USCIS by filing Form I-765. Although employment through OPT is not tied to a specific employer, employment must be related to the students area of study. OPT is issued for a maximum of twelve months and may be applied for up to 120 days prior to the expected begin date of employment or as late as sixty 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 is one of the following applies:
- Student experiences severe economic hardship caused by unforeseen circumstances beyond the student's control. Work is limited to twenty hours per week while school is in session (may work full time during holidays or school vacations);
- Student has been offered employment by a recognized international organization and obtain written certification from the organization that the work the student has been hired for is within the scope of the organization sponsorship; and
- 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.
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/payroll specialist is recommended, as such persons in some cases may be deemed a tax-resident.
The United States Immigration and Customs Enforcement ("ICE") agency published an interim final rule in the Federal Register on April 8, 2008. The rule responds to the situation in which an F-1 student's status and work authorization expires before he or she can begin employment under an approved H-1B petition due to the annual "cap" on H-1B petitions. The rule also allows for OPT extension for up to twenty nine (29) months (an additional 17 months is applied to the standard 12-month OPT) if the foreign national has earned a degree in the area of science, technology, engineering, or mathematics ("STEM") and the U.S. employer is enrolled in the government's E-Verify program.
The situation addressed by the 2008 Cap Gap rule is illustrated by the following example, which was a frequent problem for F-1 students seeking to change to H-1B status prior to April 2008:
Student begins working at Company on June 15, 2004 pursuant to Optional Practical Training which is granted for one year, until June 15, 2005. On October 2, 2005, 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 2005 the day before, Company is too late. The soonest Company could file an H-1B for Student was six months prior to the beginning of FY2006, on April 1, 2005, and Student was not able to work for Company as an H-1B until the first day of FY2006, on October 1, 2006. Student has thus been "hit by the cap", resulting in a gap in employment authorization between June 15, 2005 and October 1, 2006.
Pursuant to the new rule, where the H-1B cap has already been reached and an H-1B change of status petition is accepted for filing for the F-1 student with a start date beginning on the first day of the next fiscal year (October 1st) - the F-1 student's status will be automatically extended, along with any grant of OPT work authorization, until the first day of the next fiscal year (October 1st). If the H-1B petition is rejected, denied or revoked, the automatic extension of status, and work authorization, will immediately terminate. The student will have the standard 60-day grace period (starting from the date of denial or rejection of the petition) before they have to leave the United States. The interim rule allows F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1st. F-1 students who have not been granted OPT will have their lawful status automatically extended but will not be authorized to work until the H-1B petition takes effect. The automatic extension of status also applies to any F-2 dependents.
Note: students should not travel during the automatic cap gap extension period (between the F-1 expiration and H-1B effective date on October 1st), as they will lack necessary documentation to reenter the U.S. during the gap.
17-Month OPT Extension for STEM Graduates
STEM graduates who are employed by businesses enrolled in the E-Verify program will be eligible for a 17-month extension of OPT. Under current regulations, F-1 students are limited to 12 months of OPT that must be completed within 14 months of graduation. STEM graduates will be eligible for a single 17-month extension of OPT. Once the OPT extension has been granted, the student will not be entitled to another OPT extension even after the completion of another STEM degree program.
Prior to recommending the 17-month OPT extension, the graduate's Designated School Officer ("DSO") must certify that the student's degree, as shown in SEVIS, is a bachelor's, master's, or doctorate degree with a code that is on DHS' STEM Designated Degree Program List. The list includes: actuarial science, computer science (except data entry/microcomputer applications), engineering, engineering technologies, biological and biomedical sciences, mathematics and statistics, military technologies, physical sciences, science technologies, and medical science. The Department of Homeland Security ("DHS") may add degrees to the STEM list and to this end will accept comments and recommendations for additional degrees that should be considered for inclusion in the list.
The STEM graduate's employer must be registered in the government's E-Verify program and must be in good standing in the E-Verify program in order for the OPT extension to be granted. E-Verify is a DHS program that provides employers with an automated link to federal databases to determine the employment eligibility of new hires and the validity of their Social Security numbers. Enrollment is voluntary, although some states, such as Arizona, have enacted legislation requiring certain employers to participate in the program. The STEM graduate's OPT extension application must include the name of the employer and the employer's E-Verify identification number.
The rule also provides for an automatic extension of employment authorization for students who submit a timely OPT 17-month extension application prior to the expiration of the initial 12-month OPT period. Work authorization will be automatically extended for up to 180 days to allow for the adjudication of the extension application.
Additional Reporting Requirements
The graduate and the employer must agree to additional reporting requirements in connection with the 17-month OPT extension. The graduate must report to the DSO any change in legal name, residential or mailing address, employer name, employer address and loss of employment within ten (10) days of the change. The graduate must also make a validation report to the DSO every six (6) months starting from the beginning of the 17-month OPT extension period. The graduate's employer must report the termination of the employment relationship to the graduate's DSO within forty-eight (48) hours of the termination. The DSO must report all of the information in SEVIS. Although the OPT extension application must include the name of the graduate's employer, the rule does not require the graduate to submit a new application for employment authorization when there is a change of employer.
Limitation on Period of Unemployment for All Students on OPT
The new rule sets specific limits on the time during which a graduate on OPT may be unemployed in order to continue maintaining F-1 status. In the initial 12-month period of OPT available to all graduates, not more than 90 days of unemployment is permitted. STEM graduates who obtain a 17-month extension of OPT may not be unemployed for more than 120 days during the aggregate 29 months of OPT.
OPT applications will be permitted to be filed within sixty (60) days of graduation. Under current regulations, F-1 students must request OPT prior to completing their F-1 program. The new rule extends the application period to allow students to apply for OPT within sixty (60) days of graduation.
There are two parts to this interim final rule. The first part allows for automatic extension of OPT status for any F-1 student beneficiaries with pending or approved H-1B petitions. To take advantage of this automatic extension, employers do not need to be enrolled in E-Verify. The second section of the rule allows for an extension of OPT status for up to 17-months prior to expiration of the initial grant of OPT for one year. A 17-month extension of OPT status applies only to those graduates in a STEM field, and it does require employer enrollment in E-Verify.