Non-Permanent Visas: Students Graduating (F-1 Optional Practical Training)
Welcome to the Valvo & Associates, Inc. Student (F-1) Optional Practical Training Landing Page. Please select from the below menu to learn more about Student (F-1) Optional Practical Training.
- General OPT Rules
- 2008 Major Changes to the OPT Program-Summary
- STEM Optional Practical Training Extension
- STEM Designated Degree Program List
- Student and Employer Obligations under STEM OPT Extensions
- Completing Form I-9 for a STEM OPT Extension Employee
- Automatic Extension of F-1 OPT Status and Employment (Cap Gap Rule)
- Completing Form I-9 for a Cap Gap OPT Extension Employee
- Limitation on Student Unemployment During OPT and STEM OPT Extension
- International Travel While in OPT Status
- U.S. Tax Issues for Employers of Foreign Students
- Social Security Cards for Students
General OPT Rules
Optional Practical Training (OPT) is allowed during a student’s annual vacation and other times when school is not in session, after completion of all course requirements for a bachelor’s, master’s or doctoral degree program or after completion of the student’s course of study. OPT is not available for English language students. After the completion of each educational level, a student is eligible for an additional period of OPT. For example, a student that completes his/her bachelor’s degree is allowed twelve (12) months of OPT. If the student later completes his/her master’s degree, he/she is eligible for an additional twelve (12) month period of OPT.
A student must first apply to the school DSO for a grant of OPT. Students may apply for OPT within ninety (90) days prior to the completion of studies or within sixty (60) days after the completion of studies. If accepted, the DSO will issue a SEVIS I-20 that is annotated for OPT with the period of authorization. The student must file a Form I-765, appropriate supporting evidence and the proper filing fee with the USCIS. Processing is generally completed within ninety days. If the Employment Authorization Document (EAD Card) is not issued within ninety days, the student must inquire at the local USCIS District Office.
A student may not commence employment with an employer until the EAD Card has been received by the student. Any employment prior to EAD Card issuance is unlawful.
2008 Major Changes to the OPT Program
The USCIS issued new interim final regulations on April 8, 2008 significantly modifying existing F-1 OPT regulations. These regulations, effective the date of publication, make three (3) major modifications to the OPT program as follows:
- Students with certain degrees (STEM Degrees) are allowed to apply for an extension of their OPT status for an additional seventeen (17) months with certain employers. This allows such students a total of twenty nine (29) months of OPT;
- Students in valid F-1 OPT status seeking to change to H-1B status may receive an automatic extension of their F-1 OPT status and EAD Card until H-1B status is effective on October 1, with certain limitation and rules more fully discussed below; and
- Students in OPT status may not be unemployed for longer than ninety (90) days during the initial period of OPT status or one hundred twenty (120) days if the student has an approved seventeen (17) month OPT STEM extension.
STEM Optional Practical Training Extension
As a general rule, students are allowed to apply for a twelve (12) month period of OPT to work in a position related to their area of study following completion of studies in the U.S. The new regulations allow students who have earned bachelor’s, master’s or doctoral degrees in Science, Technology, Engineering or Mathematics (STEM) to extend their OPT status for an additional seventeen (17) months, for a maximum total of twenty nine (29) months. However, the student’s employer must be registered and in good standing with the USCIS E-Verify Employment Verification System. If a student has not changed his or her status, the student still has a sixty (60) day grace period in which to depart the U.S. after completion of the STEM OPT Extension period. Only one STEM OPT Extension is permitted for a student.
The degree which serves as the basis for the student’s current period of OPT must be one on the current STEM Degree Program List. For example, if a student previously completed his/her degree in a STEM Designated Degree Program two years ago, but just completed his/her master’s degree in a non- STEM Degree Program and has valid OPT status, the student is not eligible for a STEM OPT extension.
If a student has a dual major, as long as one of the degrees is on the STEM Designated Degree Program List, and the job is directly related to the student’s STEM degree, the student is eligible for a STEM OPT extension.
STEM Designated Degree Program List
The following are the initial STEM Designated Degree Program List:
- Actuarial Science. NCES CIP Code 52.1304
- Computer Science: NCES CIP Codes 11 .xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
- Engineering: NCES CIP Codes 14.xxxx
- Engineering Technologies: NCES CIP Codes 15.xxxx
- Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
- Mathematics and Statistics: NCES CIP Codes 27.xxxx
- Military Technologies: NCES CIP Codes 29.xxxx
- Physical Sciences: NCES CIP Codes 40.xxxx
- Science Technologies: NCES CIP Codes 41.xxxx
- Medical Scientist (MS, PhD): NCES CIP Code 51.1401
The STEM Designated Degree Program List is based on the U.S. Department of Education’s “Classification of Instructional Programs” (CIP) 2000 report. Modifications to the list are made by ICE.
Student and Employer Obligations under STEM OPT Extensions
Student Rules
First, students must obtain a recommendation from their DSO to qualify for a STEM OPT extension. The DSO must enter its approval of the STEM OPT extension into the Student and Exchange Visitor Information System (SEVIS) and issue a new Form I-20 to the student. The degree that is the basis for the student’s current period of OPT must be a bachelor’s, master’s or doctoral degree program on the current STEM Designated Degree Program List.
Second, the student must file a new Form I-765, Application for Employment Authorization and correct USCIS filing fee with the USCIS before the student’s current EAD Card expires. Timely filing of the I-765 allows the student to continue employment for up to one hundred eighty (180) days while the USCIS reviews the application.
Third, a student must agree to report to his/her school within ten days any change in legal name, residential or mailing address, employer or address of employer and/or loss of employment. The DSO will update this information in SEVIS. Each school has its own reporting procedures and forms.
Fourth, a student must “check-in” with his/her school every six (6) months from the date the STEM OPT extension period commences. The “check-in” will be updated by the DSO in SEVIS. Each school is required to maintain its own “check-in (also known as validation) procedures and forms.
Employer Rules
First, employers are required to be in good standing with the USCIS E-Verify Program, the U.S. government’s electronic Form I-9 reporting system, to allow its F-1 OPT employees to qualify for STEM OPT extension benefits.
Second, employers are required to report to the student’s DSO within forty eight (48) hours if the student’s employment ceases prior to expiration of the student’s EAD Card. A DSO’s contact information is located on the face of a student’s Form I-20. An F-1 OPT employee must be reported to the DSO when the employer has knowledge the F-1 OPT employee is no longer employed or when the F-1 OPT employee does not report to work for five (5) consecutive business days without the employer’s consent, whichever occurs earlier. Each school is required to maintain its own reporting procedures and forms for employers.
Completing Form I-9 for a STEM OPT Extension Employee
As stated previously, a timely filed STEM OPT extension automatically extends employment authorization for 180 days. The new EAD Card should be issued within this 180 day period. For purposes of I-9 compliance, the following documents, in combination together, are deemed equivalent to a valid EAD Card until the new STEM OPT Extension EAD Card is issued or for 180 days:
- Expired or unexpired OPT EAD Card (Form I-766)
- USICS Form I-797, Receipt Notice for Form I-765 for the STEM OPT extension application
- Form I-20 issued by the school DSO recommending OPT
Automatic Extension of F-1 OPT Status and Employment (Cap Gap Rule)
The new regulations allow for automatic extension of a student’s F-1 OPT status in the U.S. and employment authorization if the student timely filed an H-1B petition that has been approved or is still pending final review with the USCIS. The student is not required to apply for a new EAD Card. Extension of the EAD Card is automatic by law.
The student’s H-1B petition must be selected in the H-1B lottery for an H-1B cap number allocation. The automatic F-1 OPT status and employment authorization ceases on September 30 of the fiscal year for which the H-1B status is requested or the date of H-1B petition’s denial, rejection or revocation, whichever is earlier. The student is allowed sixty (60) days to depart the U.S. from the date of denial, rejection or revocation. This rule applies to all students, not just STEM graduates. F-2 dependent status is also automatically extended.
If a student in valid OPT status whose EAD Card has expired, but files a H-1B petition within the 60 day grace period and such period is during the H-1B petition filing period, such student’s OPT status is automatically extended. However, the student’s EAD Card is not automatically extended. The USCIS has not yet announced whether such a student may apply for a new EAD Card.
Completing Form I-9 for a Cap Gap OPT Extension Employees
For purposes of I-9 compliance, the following documents, in combination together, are deemed equivalent to a valid EAD Card until September 30 of the current calendar year, of the date of rejection, denial or revocation of the H-1B petition:
- Expired or unexpired OPT EAD Card (Form I-766)
- USICS Form I-797, Receipt Notice for the H-1B petition
- Form I-20 issued by the school DSO recommending OPT
If a Cap Gap employee provides the Cap Gap I-20 and the OPT EAD Card, but not the Form I-797 Receipt Notice, the employment eligibility may continue up to either to the date noted o the Cap Gap I-20. The employer must do the I-9 reverification of employment by the Cap Gap Form I-20 expiration date.
Limitation on Student Unemployment During OPT and STEM OPT Extension
Prior to issuance of the new regulations, the government never regulated the employment of a student in OPT status. However, under the new regulations, a student may not be unemployed for greater than an aggregate of ninety (90) days during the initial period of OPT status or an aggregate of more than one hundred twenty (120) days if the student has an approved seventeen (17) month OPT extension. If unemployed for greater than these limits, the student is considered to be in violation of his/her status. It should be noted that students are given a ten (10) day grace period between the end of one job and the beginning of another job. These days are not included in the 90/120 day total. Further, any days spent physically outside the U.S. are not counted towards the 90/120 day total.
The 90/120 day limit on unemployment during OPT status continues during any cap gap extension period.
A student is given a new ninety (90) maximum period of unemployment during each OPT status period after the completion of successive degrees.
International Travel While in OPT Status
A student in valid OPT status that travels abroad and seeks to re-enter the U.S. must possess a valid EAD Card, SEVIS I-20 which authorizes the OPT and a valid F-1 visa. The SEVIS I-20 must contain an original signature of the DSO indicating international travel is authorized. The DSO signature cannot be older than six months from the date of re-entry into the U.S. It is advisable for a student to carry an original letter from his/her employer confirming the employment as well as copies of recent payroll earnings statements as proof of employment.
It is highly advisable that a student not travel during a cap gap extension period. The USCIS currently takes the position that a student that travels internationally during a cap gap period that does not possess a valid EAD will not be allowed to re-enter the U.S.
U.S. Tax Issues for Employers of Foreign Students
Foreign students in F-1, M-1 status or J-1 nonimmigrant visa status enrolled and attending classes at colleges and universities in the United States and working under CPT or OPT are exempt from Social Security taxes as long as they have been physically present in the U.S. for less than six years. Employers should not withhold these taxes from these employees while in these nonimmigrant statuses.
However, once a student changes status to another status, such as H-1B or E-2, the employer is required to withhold Social Security taxes from the date the new status is effective.
Social Security Cards for Students
Under current regulations, the SSA only issues Social Security Cards to U.S. citizens, U.S. lawful permanent residents (green card holders) and persons authorized to work in the United States.
Applicants for Social Security Cards must complete a Form SS-5 and attend a personal interview at a SSA office. During the interview, an applicant must provide clear evidence of identity, age, nationality and employment authorization in the United States. Foreign students must present their SEVIS I-20 with endorsement to accept employment and an EAD Card.
The SSA checks employment eligibility for all foreign nationals through the Systematic Alien Verification for Entitlements (SAVE) database system before it issues a Social Security Card. If the SAVE system cannot confirm employment eligibility, it will seek confirmation with the USCIS.
FAQs for J-1 Trainees and Interns (Coming soon)
