Every year, a fresh crop of graduates emerges from U.S. colleges and universities looking for work. If your company or business is hiring, you may receive resumes from graduates who are foreign students in the U.S. with no green card or other long term right to stay here. But give their resumes a closer look: They may have a permit allowing them to work in the U.S. for several months or years, as described below. And if you like their work, you may eventually decide to sponsor them for a non-immigrant visa and ultimately a green card.
The initial hiring of a recently graduated international student is an easy process; one which does not require the help of a lawyer. All categories of international students -- F-1s, M-1s, and J-1s -- have the opportunity to legally work full-time upon graduation. With good planning and foresight, they can obtain valid, full-time work authorization to begin as early as the day after graduation.
Hiring F-1 Students
As soon as an F-1 student completes a degree program, he or she is eligible to apply for 12 months of work authorization called Optional Practical Training (OPT). The object is to gain practical experience in the student's major area of study. (See 8 C.F.R. § 214.2(f)(10)(ii)).
This means that the position for which you hire the student must be related to the student’s major. For example, you should not hire a physics major to wait tables. Ultimately, the responsibility of proving that the job is within the student’s major lies with the student, not the employer. However, to protect your business, it is important to be aware of the rules underlying the student’s work benefit.
How Soon an F-1 Student Can Apply for and Receive OPT
You won’t, as an employer, need to take an active role in helping the student apply for OPT work authorization. The student’s Designated School Official (DSO) will help the student apply, through U.S. Citizenship and Immigration Services (USCIS). The application takes around 30 to 90 days for USCIS to decide on. The OPT application fee (Form I-765) will be paid directly by the student ($380 as of early 2014), since the benefit is unique to the student, and not tied to any one employer.
Your hiring decision must be made before the student graduates, because the student must apply for OPT before that date. The student may request that the OPT begin any day within 60 days after the graduation date. A student may not begin working until receiving the OPT approval card from USCIS and the must wait until the requested start date has arrived.
In order to put the student onto your company’s payroll, you will need to request that the student ask his or her DSO to enter your company’s name and address in the Student and Exchange Visitor Information System (SEVIS). This is important because the DSO must print a new “Form I-20” for the student (a crucial form showing the student’s legal status in the U.S.). The I-20 shows the employer’s name and address on the third page. You can add the student to your payroll only after receiving an updated and signed Form I-20 from the student (and making a copy for your files).
What happens after the 12 months of OPT are over? If eligible, the graduate can apply for a STEM OPT extension (described below). If not eligible, then your most likely option to keep the graduate working for you is to petition for him or her to receive a change of status to a temporary work visa such as the H-1B. For more information regarding the types of temporary work visas and their requirements see “Temporary Work Visa Options.”
Changing status from an F-1 student to a temporary worker requires the help of a knowledgeable immigration lawyer.
17-Month STEM OPT Extension
In 2008, prompted by a perceived lack of qualified U.S. candidates for jobs in science, technology, engineering, and mathematics (STEM), the Department of Homeland Security (DHS) created a special 17-month OPT extension. The OPT extension is available only to F-1 students studying in a STEM Designated Degree Program. Qualified F-1 students can receive a total of 29 months of OPT work authorization.
**IMPORTANT NOTE** -- This extension for an extra 17 months was challenged in federal court. In August of 2015, the U.S. District Court for the District of Columbia found that the DHS did not follow required procedures when it created this extension. The court vacated (canceled) the DHS regulation -- but, so as to minimize the effect on applicants, post-dated the "vacatur" by six months, giving the DHS until February 12, 2016 to resubmit the rule with appropriate notice and opportunity for public comment. Until that date, the existing 17-month extension rule still applies -- and with any luck, it will be reinstituted following procedures that will withstand legal challenge. ***
In order for an F-1 graduate to be eligible for the one-time 17-month OPT extension, he or she must be currently approved for OPT based on a bachelor's, master's, or doctoral degree in a STEM (science, technology, engineering, mathematics) field. The employer must also registered in E-Verify, an Internet-based system sponsored by USCIS that determines a worker’s employment eligibility. The E-verify system is free and easy to join online, but requires the employer to enter into a comprehensive agreement that includes the obligation to run every new employee through the E-verify system upon hire (including U.S. citizens).
The STEM application is a relatively simple matter, which can be handled by the student and DSO. The employer is not obligated to pay for the STEM extension application fee ($380 as of early 2014). The biggest responsibility the employer will take on is a minor reporting requirement: The employer is obligated to tell the DSO when or if the student is terminated or ceases to be employed there.
The student, with help from the DSO, must apply to USCIS for the 17-month STEM extension before the student’s 12-month OPT expires. There is no time limit as to how soon a student can apply for the extension – a good thing, because you may be able to find out quite soon just how long the student will be able to work for you on an OPT permit. A student who graduated in a STEM major and has an E-verify employer can apply for the 17-month extension on the very first day of the initial 12-month OPT employment.
Trouble may arise if the student quits or is terminated before the beginning of the 17-month extension period, however. The student must find a different E-verify employer in the same field of study or risk losing OPT authorization altogether. As long as the employer abides by the reporting requirement and informs the student’s DSO of the student’s termination, the employer will face no repercussions.
Hiring M-1 Students
M-1 students are eligible for OPT employment, but their OPT period tends to be much shorter than that of F-1 students. An M-1 student comes to the U.S. to study at a vocational or other non-academic institution. Upon completion of the program, an M-1 student is eligible for one month of OPT employment authorization for every four months of full-time study completed.
M-1 students are not eligible to work during their studies. And after completion of their studies, regardless of how many months of full-time study they have completed, M-1 students are limited to an aggregate of six months total OPT. M-1 students are also not eligible for the 17-month STEM extension.
The process for requesting M-1 OPT work authorization is exactly the same as for the F-1 student. It must be requested by the DSO and adjudicated through USCIS and paid for by the student. The M-1 OPT process also does not require the help of a lawyer.
Hiring J-1 Students
J-1 students are eligible to work after graduation under something called “Academic Training” (AT). AT is training related to a student’s field of study and may include full-time work. Most J-1 students are eligible for an aggregate of 18 months of Academic Training (AT). It is important to get confirmation from the student as to exactly how many months of AT he or she has left in which to work, since the 18-month limit includes AT taken both before and after graduation and any and all AT taken in connection with lower-level degrees.
AT also comes with other limitations. One important one is that the total amount of AT for a student cannot exceed the amount of time it took to get the degree. So, if it took a student 12 rather than 18 months to finish a degree, then the student would be allowed only 12 months of AT, rather than 18 months.
Additionally, a J-1 student completing a Ph.D. is entitled to an additional 18 months of AT, for a total of 36 months (as long as it took the student at least 36 months to complete the Ph.D. degree). All of these nuances make it important to get pre-hiring confirmation from the student and his or her Responsible Officer (RO) at the school as to the exact number of months of AT the student will be given to work at your company.
Unlike OPT, AT work authorization does not require the student to apply to USCIS. Instead, AT approval can be granted immediately, by the J-1 student’s RO. (All it takes on the RO’s end is a simple notation into the SEVIS system.) AT also does not require any payment of an application fee. And as with OPT, getting AT work permission does not require the help of a lawyer.
From the standpoint of the employer, international students with AT are in many ways the easiest to hire. However, difficulties may arise if and when the J-1 student runs out of AT work authorization and the employer wishes to sponsor a change of status to a temporary worker (such as H-1B) or an adjustment of status to permanent resident (a green card). Some J-1 students are subject to a two-year foreign residence requirement. (See “What Is the J-1 Visa Two-Year Home Residency Requirement?”) A J-1 student who is subject to two-year foreign residence requirement must either remain outside the U.S. for two- years before returning, or apply for and receive a waiver of this requirement. Both this waiver application and the application to change status from J-1 to a worker visa require the help of an immigration lawyer.