F-1 students whose employers file an H-1B petition on their behalf within certain time limits and request a start date of the following October 1 (the first day of the upcoming fiscal year) will receive an automatic extension of their status. (This comes from a U.S. Department of Homeland Security (DHS) regulation issued in April 2008.)
To be eligible, your employer must file the change of status prior to the expiration of your F-1 status. You probably won’t find this expiration date written down anywhere. When you entered the United States on an F-1 visa, the Customs and Border Protection officer who admitted you might have put the letters “D/S” on your entry stamp; or more likely, if you were admitted in 2013 or thereafter, would have entered this notation into a computer system, which you can find on your online I-94.
D/S stands for “duration of status.” U.S. immigration law defines this as the period required to complete your studies, plus one year of practical training, plus 60 days. Therefore, in order to qualify for the automatic extension, you must file your H-1B petition during this period of time. If uncertain when your F-1 status expires, consult with your international student services office.
Your employer must also request an October 1 start date, to conform with the availability of a limited supply of H-1B visas at the beginning of the fiscal year, which begins on October 1. However, employers are allowed to file H-1B petitions six months in advance of the requested start date of your H-1B status. Since there has been a shortage of H-1B visas in recent years, most employers of H-1B workers apply in April for an October 1 start date.
If you wish to be eligible for the automatic extension of your F-1 during the “gap” between your F-1 status and H-1B, your employer must request the October 1 start date. You must also request a change of status on the actual I-129 petition. There will be a question on the I-129 form that asks which action should be taken. Be certain the “change of status” box is selected on your form.
Finally, your employer must file the petition within the period of time that USCIS accepts H-1B petitions. This means that, if USCIS announces that it is no longer receiving H-1B petitions for a given fiscal year, an employer cannot send in a petition on your behalf for the sole purpose of extending your F-1 status.
Once your employer has filed an H-1B petition for you , your status will be automatically extended while USCIS reviews your case and makes a decision.
If USCIS approves your H-1B petition with an October 1 start date, your automatic extension will be valid through September 30, which means you will continuously maintain lawful status in the United States during the “gap” period between your F-1 and H-1B.
If USCIS rejects, revokes, or denies your H-1B petition, you will enjoy a 60-day grace period after USCIS issues its decision. During those 60 days, you are expected to prepare for departure from the United States. An exception to this 60-day rule would be if USCIS’s reason for denying your H-1B was that you failed to maintain proper F-1 status, in which case your status would expire on the date shown on the USCIS rejection notice.
F-1 students are eligible for Optional Practical Training (OPT) after completing their studies. If you are approved for and working on OPT when your employer files your H-1B petition, then you will also be able to continue working during the automatic extension period.
If you are a student who has received a degree in science, technology, engineering, or mathematics or one of the many related fields on the STEM Designated Degree Program list, you are eligible to extend your OPT status 24 months beyond the normal one year. You can apply for the STEM OPT extension during the gap period, which could be a good idea as a back-up plan the H-1B petition.
Although the DHS regulation automatically extends your status, you will need to make an appointment with your school’s international student services office or designated school official (DSO) to obtain documentation of your continued status. Bring evidence of the H-1B filing with you to the appointment.
Evidence of the H-1B filing includes a copy of the petition, a courier label or receipt, or a certified mail receipt. Your DSO will then issue an I-20 with the extension valid through June 1. If USCIS accepts your H-1B petition for processing, you will need to make another appointment with your DSO and take a copy of your USCIS receipt notice. At this point, your DSO will issue a new I-20 with the final extension.
]]>F-1 visa holders (but not their spouses or children) can work at almost any job on their school’s campus without needing to obtain U.S. government authorization. If you want to work off campus, however, you’ll need to request authorization from either your DSO or the U.S. Citizenship and Immigration Services (USCIS). Your DSO can authorize curricular practical training. USCIS can authorize limited types of off-campus work, including:
We’ll give a rundown of each type of work below, plus information on whether you need to obtain an actual work permit card from U.S. Citizenship and Immigration Services (USCIS).
STUDENTS FROM COUNTRIES EXPERIENCING HUMANITARIAN OR OTHER CRISES: You might not need to meet all the usual requirements described below. USCIS sometimes makes special provisions, for limited time periods. Talk to your DSO for details.
You may work on the campus of your school for up to 20 hours a week while school is in session and up to full-time during school vacations.
However, there’s an important requirement: Before you start work, the DSO must certify that the job you have been offered will not displace non-student U.S. workers. In other words, the job must be one that is typically filled only by students. A job in the cafeteria, library or bookstore; or maybe with a professor or a campus science laboratory as a teaching or research assistant would likely satisfy this requirement. A job as secretary to the dean or as janitor would probably not.
On-campus employment is also allowed if it is part of a scholarship or fellowship and is part of your academic program. In fact, sometimes such work can be done off campus if the workplace is still “educationally related” to or “affiliated” with the school. An example would be working with a professor at an off-campus research facility. Your DSO will know if such off-campus employment is permitted within the limitations of permitted on-campus work.
What about graduate students? These are often offered to grad students in exchange for working as a teaching and/or research assistant. Because a stipend is a form of compensation, it's paid work, in the eyes of the U.S. immigration authorities. Like other employment, accepting and receiving a graduate stipend from the university does not violate your F-1 status if you are performing the work on campus, you are receiving payment directly from the university, and you aren’t working more than 20 hours a week while school is in session. If you are receiving a stipend for working off-campus, make sure that the location is educationally affiliated with your school. Your Designated School Official (DSO) will be able to help you with that determination.
Once your studies are over, you must stop working at your on-campus job. You might, however, be able to obtain authorization to stay in the United States and do paid practical training, as described below.
Despite all your plans to be self-supporting, something could go wrong. Perhaps your parent loses a job, the foundation that supplied your scholarship goes bankrupt, you or your family have new medical bills, your country's currency plunges in value, your school tuition rises sky-high, or a natural disaster strikes your city or country.
Luckily, U.S. immigration laws provide for such contingencies. If you can show that you are experiencing severe economic hardship because of unforeseen circumstances beyond your control, you might be able to obtain permission to work for an off-campus employer.
In fact, your task will be simpler in cases where a major event affected your entire country, such that the U.S. government invokes the Special Student Relief or "SSR" program and temporarily suspends some of the usual rules for all qualified applicants from your country. In that case, you'll still need to submit an application for a work permit, and prove that you yourself are facing hardship, but you won't have to work as hard to show the cause of that hardship.
If you have been in school for less than one year, you are in most cases on your own (unless you're covered under an SSR designation that also lifts this requirement). You will not be able to obtain this special work authorization, and you will have to find some other way to cover your expenses. Your only option might be to return home and wait for better times to reapply for a student visa. Of course, you will want to talk to your DSO first, who might be able to help the school arrange a leave of absence, so that you will not have to reapply for school admission when you are ready to return.
If you have already completed a full academic year of study, are in good academic standing, and cannot obtain suitable or available on-campus employment to meet your new need, you can apply to USCIS for a permit to work off campus. Even if you already have an on-campus job, you can switch to off-campus work, which you might want to do if it pays more. You can work no more than 20 hours a week while school is in session, but you can work full-time during school holidays or vacations.
In order to apply, you'll need to fill out USCIS Form I-765. For Question 29, your eligibility category will be (c)(3)(iii). This particular application requires an unusual amount of documentation, including:
Ask your DSO for assistance. If applying under the SSR program, your DSO will separately need to certify in the Student and Exchange Visitor Information System (SEVIS) that you meet all the SSR qualifying requirements. You'll then need to submit your application to USCIS following the instructions on its website.
Curricular practical training is off-campus work that is an integral part of your curriculum and directly related to your major area of study. If your course of studies already has such a program (such as a cooperative education or internship program), you may take one of these jobs. You might or might not be paid for such work.
For example, if you are studying psychology and your program requires you to earn credit or fulfill your graduation requirements by working at a hospital or treatment facility, this would be considered curricular practical training. You will be allowed to work even if the work is not required. If it is “elective” (not a requirement for your degree) but your school lists it in the catalogue, names a faculty member in charge, and gives academic credit for it, it can potentially qualify as curricular practical training. Make sure you check with your DSO first as some schools will have stricter requirements than others about granting curricular practical training and some might only authorize it when it is required.
Curricular practical training is open only to students who have already completed one academic year at the college level or above. The exception is if you are enrolled in a graduate program that requires immediate participation in such training. Practical training is completely closed to students who are in English-language-only programs.
If you do one year of full-time practical training (curricular or optional, described below) during your studies, you’ll lose your eligibility to do more practical training after your studies are completed. That means you’ll lose a valuable right to spend some post-study time in the United States. You can avoid this problem by doing less than one year of curricular practical training, or making sure that your curricular practical training is part-time, not full-time.
You do not need USCIS permission ahead of time to do curricular practical training. The only procedural requirements are that your DSO:
You’ll be authorized for the duration of your curricular practical training plan under this procedure. The dates of authorization will be printed on your I-20 form. Unlike some other forms of off-campus work, you do not need a work permit card (“employment authorization document” or “EAD”).
Optional practical training (OPT) is another form of off-campus work available to F-1 students. Unlike curricular practical training, it doesn’t need to be a specific part of your school’s academic offerings. It does, however, need to be related to your studies. Working at a coffee shop while you’re in a nursing program isn’t going to satisfy USCIS. The training must be directly related to your major and in accordance with your educational level.
Unlike curricular practical training, however, you do need a work permit card (“employment authorization document,” or EAD), which you would apply for using USCIS Form I-765. Your eligibility category is (c)(3)(A) if you haven't completed your studies, and (c)(3)(B) if you have.
Optional practical training is open only to students who have completed one academic year at the college level or above. The maximum you can do is one year of full-time optional practical training. Part-time employment is allowed only before you complete your program and is deducted from your one-year maximum at one-half the rate. This means that if you worked part time for six months before completing your program, you could do nine months of optional practical training after you complete your program.
Optional practical training is not available to elementary or secondary school students or to students who are in school for the purpose of studying the English language.
You can change employers during your period of practical training, so long as the new employer also provides work that is related to your studies.
You can do your optional practical training while school is in session (for 20 hours a week or less); during vacations; after completing your degree requirements; or after graduating or finishing all your requirements, as long as this training period is completed within 14 months of graduation.
The work can be full-time or part-time before you complete your program. It must be full-time after you complete your program. Don’t use up your practical training too soon, however. If you do one or more years of full-time practical training (curricular or optional) during your studies, you’ll lose your eligibility to do more practical training once your studies are completed. That means you’ll lose a valuable right to spend some post-study time in the United States. You can avoid this problem by doing less than one year of full-time curricular practical training, or making sure that your curricular practical training is part-time, not full-time.
If you completed a degree in a STEM field (science, technology, engineering and math), you are eligible for a 24-month extension of your optional practical training. This is commonly referred to as a STEM extension. Interestingly, F-1 students seeking STEM OPT extensions can be employed by new start-up businesses, so long as all regulatory requirements are met (as further described in the USCIS Policy Manual at Volume 2, Part f, Chapter 5).
Your school’s DSO or career planning office can give you more information and help you prepare the paperwork.
If you obtain an offer of employment with an international organization that qualifies under the “International Organizations Immunities Act,” you might be eligible to work. As a practical matter, these organizations are usually only found in Washington, DC.
In most cases, your school’s DSO is the best person to go to for more information. If your legal situation gets complex, however, consult an immigration attorney.
]]>Strict rules regulate F-1 students’ place of employment, hours per week, and in some cases, type of employment. Simply committing an “employment violation” automatically throws you out of lawful F-1 status. Once you are out of status, you will need to file an application for reinstatement to get back into proper F-1 status (covered below)—or face possibly accruing unlawful presence in the United States.
Worse yet, if the employment violation rises to the level of so-called unauthorized or illegal employment, reinstatement to F-1 status will not be an option for you and you will face serious immigration repercussions, as also described below.
Because the consequences of a simple F-1 employment violation differ so drastically from unauthorized or illegal employment, it is important to understand the subtle differences.
F-1 students are for the most part authorized to work only on their school’s campus. In fact, your ability to work on-campus is “incident to status,” meaning that as long as you are maintaining proper F-1 status (by attending classes full time and making good progress toward the completion of your degree), you have general authorization to work on campus and won't need to apply for a work permit card to do so.
For work anywhere else, you will need to seek special work permission from either your Designated Student Officer (DSO) or U.S. Citizenship and Immigration Services (USCIS), and in most cases must wait until you've spent a year studying.
Possible types of off-campus employment include CPT (Curricular Practical Training), OPT (Optional Practical Training), as well as severe economic hardship work authorization.
The regulations also limit the number of hours you are allowed to work—20 hours per week during the school term and 40 hours per week during holiday breaks and vacations. (See 8 C.F.R. § 214.2(f)(9)).
The U.S. government occasionally makes exceptions to the work requirements for students from certain countries experiencing disaster, civil strife, and the like. Most often, it allows students from the named countries to reduce their course load and apply for off-campus employment even if they've been in school for less than a year.
The 60-day grace period at the end of your permitted stay as an F-1 student is meant to be used for getting ready to leave, enjoying a last few days touring the United States, and that’s it. No working and no studying are allowed at this time. To do either would be considered a violation of your visa status.
Make sure to count those 60 days correctly. The grace period doesn’t start the day of your graduation ceremony, but earlier, on the day you complete your final degree requirement (probably shown as the "complete studies no later than" date on your SEVIS Form I-20). For students at some colleges, this is a difference of many days.
Any deviation from the strict F-1 employment rules described above is an employment violation. In addition to unauthorized employment as discussed below, there are two types of violations of “authorized” employment that can negatively affect your F-1 status.
The fact that your job site is located on your school’s premises does not necessarily mean that the job qualifies as legitimate on-campus employment for immigration purposes. There are normally two types of authorized on-campus employment:
The first type of on-campus employment, being directly employed by the university, is easy to understand. Such employment typically includes working as a teaching or research assistant or in the school’s cafeteria, library, or within a university department or administrative office.
The second type of employment, working on the school’s premises for a commercial firm, gets more complicated. Commercial firms are common on university campuses because the school finds it cheaper to outsource service units such as the cafeteria and the bookstore rather than operate them directly. However, commercial firms must meet various special rules before they are considered legitimate on-campus employers. In order for a job with a commercial employer to be considered on-campus employment for immigration purposes, the services it provides must be in the direct service of students. The regulation states that employment "with on-site commercial firms, such as a construction company building a school building, which do not provide direct student services is not deemed on-campus employment...." (8 C.F.R. § 214.2(f)(9)(i)).
Before accepting any job located on campus, speak with your DSO, especially if your paycheck comes from any entity other than your school. The DSO can help you make sure that your employment is with a legitimate on-campus employer according to the F-1 regulations.
If you make a mistake and work with a company located on your school’s campus that does not provide service directly to students, then you have committed an employment violation and are automatically thrown out of good F-1 status and must seek reinstatement in order to continue at school.
Even when your place of employment is considered on-campus for immigration purposes, you are still limited as to the number of hours you may work. That's 20 hours per week during the school term and 40 hours per week during holiday breaks and vacations.
American students are not limited to part-time employment during the school term, so your university might not be aware of your special F-1 hourly limitations. It is your obligation to make sure that you don’t work more than 20 hours per week. If you work even 15 minutes over the 20 hour per week limit, you have violated your F-1 student status.
How do U.S. immigration authorities find out that you worked over 20 hours per week? The payroll office at your school keeps close tabs on the working hours of each employee. That office communicates directly with your DSO to inform them that you have worked over your 20-hour limit.
If you violate your status by committing either type of authorized-employment violation; whether working at an illegitimate on-campus location or working over your weekly limit; you are required to apply for reinstatement to lawful F-1 status.
Until you are reinstated, you must discontinue all work immediately but may (and should) continue to attend school. While waiting for reinstatement, you are not eligible to apply for any other F-1 benefit such as a Form 1-20 extension or either CPT or OPT work authorization.
Your DSO will help you with your reinstatement application. You are eligible to apply for reinstatement only within five months of the event that resulted in your employment violation. So if you think you might have violated your F-1 status, see your DSO as soon as possible. If you do not apply for reinstatement within five months of the event, or if USCIS denies your reinstatement application, consult an immigration attorney to inquire about your options.
Although applying for reinstatement isn’t pleasant, it is a privilege not enjoyed by people who engage in unauthorized employment, described next.
It can be tempting for students to try to earn extra cash by picking up additional work “under the table” or without authorization. Working for cash as a gas station attendant, a waitress, a cook or a dishwasher are popular ways to do so.
However, working without one of the types of authorization described above can get you into trouble. As the immigration regulations state, “Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status." (See 8 C.F.R. § 214.1(e)).
If you are working off-campus without special permission from your DSO (for CPT) or USCIS (for OPT or severe economic hardship), then you are engaging in unauthorized or illegal employment. If you begin working without authorization and later receive authorization, the time you worked without permission is still considered illegal employment. Even working without permission on the campus of a university you previously attended is unauthorized employment.
What happens if you disregard the rules described above? Accepting illegal employment can directly hinder your ability to legally live, work, or visit the United States now and in the future. A proven incident of unauthorized employment will make you ineligible for reinstatement to lawful F-1 status.
Another issue is that, as soon as you engage in illegal employment, you could be found to be unlawfully present in the United States. Accrual of more than 180 days of unlawful presence will subject you to a three-year bar on reentry (if you leave the U.S.) and one year of unlawful presence will subject you to a ten-year bar on reentering the United States. (See Consequences of Unlawful Presence in the U.S.—Three- and Ten-Year Time Bars.) If you find yourself in this situation, consult an immigration attorney immediately.
Although the DSO at your school will normally be your main source of guidance regarding use of your F-1 visa, if circumstances arise where your status is at risk, or if you are no longer attending school and thus have no access to your former DSO, you might want to speak to an attorney. See Choosing, Hiring, or Firing an Immigration Attorney.
]]>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-1 (academic), M-1 (vocational), and J-1 (exchange visitor)—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.
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's important to be aware of the rules underlying the student’s work benefit.
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).
Under normal circumstances, the application (Form I-765) takes around 30 to 90 days for USCIS to decide on. In the wake of the coronavirus (COVID-19) pandemic, however, long delays are common.
The OPT application fee will be paid directly by the student ($410 in early 2022, plus an $85 biometrics fee). That's because the benefit is unique to the student, and not tied to any one employer.
Your hiring decision should really be made before the student graduates, so as to allow sufficient time for the student to apply for and be granted OPT. The earliest the student can apply is 90 days before graduation; the latest is within the 60 days thereafter; but again, USCIS processing can take many months. What's more, the student may request that the OPT begin any day within 60 days after the graduation date, but no later. A student may not begin working until receiving the OPT approval card from USCIS and 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, 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.
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 OPT extension, available to F-1 students studying in a STEM Designated Degree Program. The list includes a wide range of fields, as animal nutrition, food science, soil chemistry, urban forestry, and digital communication. What's more, the Biden Administration announced in 2022 that 22 new fields would be added to the list.
After various permutations, this has become a possible one-time 24-month OPT extension. To be eligible, the F-1 graduate must be participating in an initial period of regular post-completion OPT, have a degree in an eligible STEM field from a Student and Exchange Visitor Program-certified school that is accredited when the student submits the extension application, pursue the extension through an employer that’s enrolled in USCIS's E-Verify employment eligibility verification program, select a STEM OPT employer that provides formal training and learning objectives, and work at least 20 hours per week per employer.
The STEM application can ordinarily be handled by the student and DSO. The employer is not obligated to pay for the STEM extension I-765 application fee ($410 in early 2022 plus $85 for biometrics). The biggest responsibility the employer will take on is a minor reporting requirement: The employer must 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 STEM extension before the student’s initial 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 might 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 extension on the very first day of the initial 12-month OPT employment.
Trouble could arise if the student quits or is terminated before the beginning of the 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.
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. They are also not eligible for a 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.
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 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, 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 can 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 also subject to a two-year foreign residence requirement. (See Dealing With the J-1 Visa Two-Year Home-Stay Requirement.) A J-1 student who is subject to this 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.
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