f-1 update lh

8/8/2019 F-1 Update LH

1/6

1416 2n

Street

Santa Monica, CA 90401

T (310) 570-4088

F (310) 570-4080 N A V I G A T I N G I M M I G R A T I O N

SUMMARY OF NEW RULES FOR F-1 STUDENTS 2008 Wolfsdorf Immigration Law Group (all rights reserved)

On April 4th, 2008, USCIS released an interim final rule allowing the extension of Optional

Practical Training (OPT) 1 for qualified students. The rule includes some of the following

changes:Extended Application Period for OPT

F-1 students may now apply for OPT up to 90 days before their academic programs end and no

later than 60 days after graduation. Previously, F-1 students had to apply for OPT prior to

graduation. This extends the period during which F-1 students may apply for OPT.

17-Month Extension of OPT for Certain Students

F-1 students with a degree in science, technology, engineering or mathematics (STEM) who are

employed by businesses enrolled in the E-Verify program may extend OPT by 17 months, for a

maximum of 29 months.

Eligibility: To be eligible for a STEM OPT extension, an F-1 student must:

Currently be participating in a 12 month period of approved post-completion OPT; Have successfully completed a degree (bachelors, masters or doctorate) in science,

engineering, technology or mathematics (STEM) included in the DHS STEM DesignatedDegree Program List, which includes, but is not limited to the following:

Actuarial Science Computer Science (except Data Entry/Microcomputer Applications) Engineering Engineering Technologies Biological and Biomedical Sciences Mathematics and Statistics Military Technologies Physical Sciences Life Sciences Science Technologies Medical Scientist

The approved list is available at www.ice/gov/sevis.

1 All references to OPT relate to post-completion OPT.


2/6

1416 2n

Street


T (310) 570-4088


Be working for a U.S. employer in a job directly related to the F-1 students major areaof study

Be working for, or accepted employment with, an employer registered and in goodstanding with USCIS E-Verify program. E-Verify is a free, internet-based systemoperated in partnership with the Social Security Administration. E-Verify electronicallycompares information contained on the Employment Eligibility Verification Form I-9

with records contained in SSA and DHS databases to assist employers verify identity and

employment eligibility of newly-hired employees; and; Properly maintain F-1 status.

Additional Reporting Requirements for STEM OPT Students and Employers:

Employers of F-1 students who qualify for the 17 month OPT extension must report tothe students school within 48 hours if the students employment ends prior to the end of

the students authorized OPT employment period.

The student must also report to the school every six months from the date the OPTextension starts.

Application Process: The F-1 student must apply for the extension of OPT by filing Form I-765

with USCIS. An F-1 student who has properly filed Form I-765 prior to the expiration of OPT (at

least 90 days prior to expiration) is allowed to continue working for up to 180 days while USCISadjudicates the request for the extension.

A student may change employers while the STEM OPT extension is pending, as long asthe employer is also an E-Verify employer.Which Degree Qualifies for STEM OPT Extension? The degree that is the basis of the current

period of OPT is the basis upon which the 17 month STEM OPT extension is granted. Therefore,

a student with an undergraduate STEM degree, but a Masters degree in a non-STEM field, but isworking in a STEM field related to their undergraduate degree, is not eligible for the 17 month

extension because the STEM OPT must be based on the same degree as the OPT.

If a student has a dual major and one of the majors is in a STEM field and the job isdirectly related to the STEM degree, the student is eligible to apply for STEM OPT

extension. A student cannot qualify for STEM OPT based on a minor in their degree.

Types of Employment Allowed During STEM OPT Extension: A student is eligible for thefollowing kinds of employment as long as all other eligibility requirements, including E-Verify

registration, are met:


3/6

1416 2n

Street


T (310) 570-4088


Self-employment Employment as an independent contractor (1099 employment)

Employment through an agency Employment by a consulting firm.

Students who are self-employed must set up a business and register with E-Verify. For

employment through an agency or consulting firm, the agency or consulting firm would need tobe registered in E-Verify, but not the company for whom the student is providing services.

H-1B Cap-Gap Relief

USCIS is authorized to extend the status of F-1 students caught in a cap-gap between the endof the students OPT and the start date of an approved H-1B petition. This cap-gap extension

automatically becomes effective when the H-1B cap has been reached and the student has an H-

1B petition filed on his/her behalf during the acceptance period.

The interim rule automatically extends the F-1 status and employment authorization of anF-1 student who has filed an H-1B petition that has been granted by, or remains pending

with USCIS. This means that:o If an H-1B petition is filed and pending, the F-1 students status and employment

authorization is automatically extended while the petition is pending.o

If the H-1B petition filed on behalf of the student is selected as a cap case, theF-1 student may remain in the United States and continue working until the

October 1 start date indicated on the petition.

o Once USCIS rejects, denies or revokes a pending H-1B petition, the automaticstatus and employment authorization ends. The F-1 student has the standard 60-

day grace period (from notification of the denial, rejection or revocation of thepetition) before he or she is required to depart the United States.

Students do not automatically receive notification when they have a cap-gap extension. Students

should request a new I-20 from their school.

Timing and Eligibility:

Unlike the extension of OPT, which is limited to F-1 students who have obtained STEMdegrees, the extension of status for F-1 students in a cap-gap situation applies to all F-1

students with pending H-1B petitions.

The cap-gap relief only applies to F-1 students who apply for change-of-statuspetitions and not to those who elect consular processing.


4/6

1416 2n

Street


T (310) 570-4088


A student must be in valid OPT status for the cap-gap extension of status andemployment authorization provision to apply. If the students OPT has already expired

before the H-1B acceptance period, the student is not eligible for cap-gap relief.

A student may apply for STEM OPT extension while the student is in the extendedperiod of cap-gap OPT, but the H-1B employer will have to withdraw the H-1B petitionbefore the change-of-status occurs on October 1, assuming the student does not wish topursue the H-1B.

Travel During Cap-Gap Extension Period: an F-1 student who travels outside of the United

States during a cap-gap extension will not be able to return to the United States in F-1 status. TheF-1 student must be prepared to apply for an H-1B visa at a consular post prior to returning and

must therefore wait until the start date of October 1.

N.B. An H-1B applicant may enter the United States up to 10 days prior to the start date, i.e.

September 20.

Periods of Unemployment During OPT

F-1 students on regular OPT (12 months) may have up to 90 days of unemployment F-1 students who have an approved 17-month OPT period are entitled to an additional 30

days of unemployment, for a total of 120 days over their entire OPT period. The 90-day limitation on unemployment applies to F-1 students during the cap-gap

extension.Students who exceed the period of unemployment are considered to have violated their status.

What Counts as Unemployed Time? Each day during the period when OPT authorizationbegins and ends that the student does not have qualifying employment counts as a day of

unemployment. The only exception is that periods of up to 10 days between the end of one job

and the beginning of the next job will not be included in the calculation for time spentunemployed.

What Type of Employment is Allowed For Students on OPT? The employment must be in a jobthat is related to the students degree program. This employment may include:

Paid employment students may work part-time (at least 20 hours per week) or full-time

o Multiple Employers: students may work for more than one employer, but allemployment must be related to the students degree program

o Short-term multiple employers (performing artists): students, such as musiciansand other performing artists may work for multiple short-term employers (gigs). If


5/6

1416 2n

Street


T (310) 570-4088


a student has a variable schedule, it should average out to 20 hours/week within amonth. The student should maintain a list of all gigs, the dates and duration.

o Work for hire: commonly referred to as 1099 employment where an individualperforms a service based on a contractual relationship rather than an employmentrelationship.

o Self-employed business owner: students on OPT may start a business and be self-employed. In this situation, the student must work full-time. The student must beable to prove that s/he has the proper business license and is actively engaged in a

business related to the students degree program.

o Employment through an agency: students must be able to provide evidenceshowing they worked an average of at least 20 hours per week while employed by

an agency.

Unpaid employment: students may work as volunteers or unpaid interns, where thiswork does not violate labor laws. The work must be at least 20 hours per week and be

related to their field of study.

What Type of Employment is Allowed For Students During An OPT STEM Extension?

Students granted an OPT STEM extension must work at least 20 hours per week for an E-Verify-enrolled employer in a position directly related to the students STEM degree.

STEM students may work multiple jobs related to their STEM degree, but all theemployers must be enrolled in E-Verify.

Students on an OPT STEM extension are allowed to volunteer, incidental to their status.This means that volunteer work is allowed but does not count as employment for thepurpose of maintaining F-1 status

How does travel outside the United States impact the period of unemployment?

If a student whose approved period of OPT has started, travels outside of the UnitedStates while unemployed, the time spent outside the United States will count as

unemployment against the 90/120-day limits.

If a student travels while employed (either during a period of leave authorized by anemployer or as part of their employment), the time spent outside the United States willnot count as unemployment.

2008 Wolfsdorf Immigration Law Group (all rights reserved)


6/6

1416 2n

Street


T (310) 570-4088


To discuss this or any other immigration matter, we invite you to contact a Wolfsdorf

professional. We have a highly qualified, experienced professional staff of over 50 employees,

each skilled and knowledgeable in their respective areas. We look forward to the privilege of

serving you.

f-1 update lh

Documents