Employment of Students: Navigating The Shoals of OPT, STEM Degrees,

and E-Verify

October 21, 2008Scott T. Decker

Changes to OPT Rules for F-1 Students

Distinction between pre-completion OPT and post-completion OPT

Consequences for unemployment during OPT period

Opportunity for 17-month OPT extension for some STEM students

“Cap Gap” protection for students changing to H-1B status

F-1 Students: Practical Training

REQUIREMENTS APPLICATION STEPS TIMETABLE DURATION

Curricular Practical Training (CPT) during school if work ties into curriculum

Optional Practical Training (OPT) before (pre-completion) or after graduation (post-completion):

1. Student has completed 12 months full-time study at U.S. university

2. No restrictions on employer: no employer petition to USCIS

1. Designated School Official must endorse student paperwork

2. OPT: Student applies for Employment Authorization in advance of working

Student may start work only when EAD is issued

3. CPT: Student may start work after endorsement

CPT: no wait

OPT: 90 – 120 days for EAD(can apply anytime from 90 days before graduation to 60 days after graduation)

CPT: no limit, but no OPT available if student has worked 12+ months on CPT

OPT: up to 12 months total before and after graduation(17-month extension available for some students)

COSTS

USCIS filing fee: $340 for EAD

Whiteman Osterman & Hanna LLP

Pre-completion v. Post-completion OPT

OLD RULE: Student could obtain a total of 12 months of OPT and OPT could span pre- and post-graduation

NEW RULE: 2 different kinds of OPT Pre-completion and Post-completion

12-month maximum period of OPT remains Pre-completion OPT time counts against post-completion OPT time

Pre-completion v. Post-completion OPT (cont.)

Pre-completion OPT is limited to 20 hours per week while school is in session and ends upon program end date

Post-completion OPT begins after student’s program end date

Cannot combine pre-completion and post-completion OPT on same EAD card must apply separately

May be difficult to transition directly from pre-completion OPT to post-completion OPT without having a gap in employment authorization

Unemployment Limits

OLD RULE: No limits on unemployment of OPT student

NEW RULE: (a) 90 days of unemployment during post-completion OPT (b) 120 days total for STEM students with 29-month OPT

Exceeding unemployment limits causes student to fall out of F-1 status

What is Unemployment?

Each day a student does not have qualifying employment after EAD card is issued is unemployment

Exception: 10 days between the end of one job and beginning of another

Student may reach unemployment limit by applying for OPT too early

Can accrue unemployment time while still enrolled in school

Time outside U.S. while unemployed is unemployment

Time spent looking for work is unemployment

Work Allowed on OPT

OPT employment must be in a job related to the student’s degree program

Must work at least 20 hours per week (post-completion)

Work may be unpaid so long as relevant labor laws are followed

Volunteer work does not count as employment for STEM OPT students, so may trigger unemployment limits

May work for multiple employersSTEM OPT students can work only for E-Verify employers – not allowed to work for one E-Verify employer and at the same time an employer not enrolled in E-Verify

STEM OPT Students

Opportunity for 17-month OPT extension (29 months total) for student

(a) whose degree is in a STEM field (Science, Technology, Engineering, Mathematics) (b) with job offer from employer enrolled in E-Verify

Eligible STEM degrees drawn from U.S. Department of Education’s Classification of Instructional Programs

Student’s I-20 will list her degree code(s)

WARNING: The list of eligible STEM degree programs has some big omissions (health sciences, “99” degrees)

Can contact ICE to request addition to STEM designated degree list, but process takes many months to complete

Applying for STEM OPT Extension

DSO at school recommends STEM OPT extension in SEVIS

Employer provides student with its E-Verify identification number

Student applies for OPT extension to USCIS on Form I-765

Student receives automatic 180-day extension of employment authorization upon filing for extension

STEM OPT I-9 Compliance Issues

How does employer complete Form I-9 for STEM OPT students?

The expired EAD card, the USCIS receipt notice showing timely filing of the STEM extension application, combined with a new I-20 updated to show the STEM extension period satisfies I-9 requirements for 180 days (or less if the application is denied beforehand).

When the 17-month STEM extension is approved, the student will receive a new EAD card, which can then be used for I-9 purposes

NOTE: E-Verify only applies to new hires, so do not “E-Verify” STEM OPT student already working for you when applying for extension

STEM Student Travel Outside U.S.

STEM student must have approved EAD card in order to return to U.S.

Filing of STEM OPT extension provides work authorization in U.S., but cannot be used to return to U.S. following foreign travel

BEST PRACTICE: Prior to leaving U.S., student should possess valid F-1 visa, I-20 endorsed for travel and bearing STEM extension dates, valid EAD card, and letter from employer confirming employment

What is E-Verify?

“Voluntary” online system through which employers verify employment authorization of new hires by comparing information from employee's I-9 form against SSA and DHS databases

Must run E-Verify check no later than 3 business days after start date

Only applies to new hires – cannot “E-Verify” existing employees

Must use E-Verify all new hires, not just foreign workers

Employer with multiple worksites can register only some of the sites with E-Verify, but STEM OPT extensions are only available for students working at jobsite using E-Verify

E-Verify Results

There are three possible results from E-Verify: (1) Confirmation; (2) Tentative Non-

Confirmation (SSA or DHS); and (3) Final Non-Confirmation

Confirmation: Employment eligibility is verified. Creates a rebuttable presumption of I-9 compliance.

Tentative Non-Confirmation: Employee’s Social Security information or DHS information could not be verified. Follow-up steps double check for errors and inform employee of the right to contest non-confirmation with SSA or DHS. If employee does not contest, then employment MUST be terminated. If employee contests, employer must provide employee with referral letter to SSA or DHS. Employee has 8 federal working days to resolve the discrepancy unless SSA or DHS extends the time period. After 10 days, the employer must query the system again for status update.

Final Non-Confirmation: Employer must terminate employment or face rebuttable presumption of unlawful hire.

Problems with E-Verify

Erroneous non-confirmation of employment authorization in 10% of casesNaturalized U.S. citizensMarried women with name changesForeign-born workers are 30 times more likely to receive a false non-confirmation than a U.S.-born employee

8 days is often not enough time for DHS or SSA to resolve errors

E-Verify cannot be used for employees who do not yet have a Social Security NumberIf an employee meets other legal requirements to begin work, the employee should be permitted to work until the Social Security number is received

Must agree to permit DHS and SSA officials to visit work site to review E-Verify records and other employment records related to E-Verify

Employers with E-Verify "buyer’s remorse" must continue using it for 30 days after giving written notice to USCIS that it wants to stop

 

H-1B “Cap Gap” Protection

H-1B visa status for most new workers begins on October 1, with April 1 filing date

For most students, OPT period ends well before October 1

Old rule – leave country at end of OPT period or seek to change status for interim between end of OPT and beginning of H-1B

New rule – Automatic extension of OPT for beneficiary of approved H-1B petition through September 30

“Cap Gap” Extension Length and Status of H-1B Petition

Status of H-1B petition

Effect on OPT Effect on F-1 status

Properly filed OPT extended to June 2, 2008 (date USCIS estimated as end of receipting period)

F-1 status extended to August 2, 2008

Not selected in H-1B lottery

No additional extension No additional extension

Selected for wait list

OPT extended to July 28, 2008 (date USCIS estimated for final decision on receipting)

F-1 status extended to September 27, 2008

Withdrawn or denied

OPT authorization ends 10 days after date of withdrawal or denial

F-1 grace period ends 60 days after date of withdrawal or denial

Approved OPT extended to September 30 F-1 status extended to September 30

Whiteman Osterman & Hanna LLP

Employment During “Cap Gap” Period

F-1 student receives automatic extension of employment authorization during “cap gap” period

No new EAD card is issued for “cap gap” period

How does employer complete Form I-9 for “cap gap” students?• Student should request DSO issue new I-20 indicating student’s F-1 status / employment authorization has been extended • The student’s expired EAD card combined with new I-20 and USCIS receipt notice for the H-1B petition satisfies I-9 requirements until September 30, or date of rejection, denial, or revocation of the petition

Gap in “Cap Gap?” Safety

What if the student’s post-completion OPT expired before April 1? Can the student get extended work authorization?

If student’s OPT expired prior to filing H-1B petition, but student was in valid 60 day grace period, then student gets extension of F-1 status, but not extension of employment authorization.

Can the student travel outside U.S. during “cap gap” period?

Student who leaves U.S. during “cap gap” can only return after obtaining H-1B visa at U.S. consulate.

Additional information on immigration issues, as well as updates on new developments, can be found on our web site at www.woh.com. Go to “Practice Groups” and select “Corporate and Professional Immigration.” At the bottom of our practice description is a link to other information and articles.

International Practice Group Leslie K. L. Thiele Scott T. DeckerWhiteman Osterman & Hanna lthiele@woh.com

sdecker@woh.comOne Commerce PlazaAlbany, New York 12260 Seth R. Leech L.J. D’ArrigoTel: (518) 487-7600 sleech@woh.comldarrigo@woh.comFax: (518) 487-7777www.woh.com

The information in this presentation is intended as general background information on immigration law and visa categories. It is not to be considered as legal advice with regard to any current or future immigration application. Immigration law changes often and processing information becomes rapidly outdated. Please consult your immigration counsel before taking action on immigration matters.

© 2008 Scott Decker