Student Visas and Employment Matters (Part 1 of 2)
Posted Apr 06, 2007; updated May 27, 2008
[See also, Part 2 of this NewsBrief.]
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Many questions that come into the Murthy Law Firm are on student matters; in particular, pre-graduation and post-graduation employment. This is the first of a two-part article providing general information on these areas that should prove helpful to many MurthyDotCom and MurthyBulletin readers. Most commonly, these inquiries are about the difference between F-1 students, J-1 cultural exchange program students / workers, and M-1 vocational students, and ways for them to transition smoothly from study to employment in the United States. In Part 1 of this article, we examine in greater detail the issues pertaining to F-1 students. Part II provides an overview of the options for J-1s and M-1s.
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Overview of Employment Opportunities for F-1s, J-1s, and M-1s
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As explained in our December 11, 2000 overview of F-1 visas (Part 2 of 3), available on MurthyDotCom, F-1 students are eligible for both pre-completion and post-completion Optional Practical Training (OPT). Likewise, J-1 students are eligible for pre-completion and post-completion Academic Training (AT). AT is employment based on one's field of study. M-1 students, on the other hand, are limited to post-completion employment only.
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When selecting the visa category that would be most beneficial, one must consider employment options; likely one of the most important factors. For example, F-1 students may be eligible for more employment options during their studies than J-1 students and M-1 students, but J-1 students may be eligible for longer terms of employment, depending upon the level and length of their studies. Another factor might be the fact that F-2 dependants of F-1s may not engage in employment under any circumstances. J-2 dependents of J-1 students, by contrast, may apply for and obtain authorization from the USCIS to engage in employment, almost without restriction. The only requirement in this case is to show that the J-1 is not relying on the J-2's employment to meet any financial obligations.
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On-Campus Employment for an F-1 Student
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An F-1 student may engage in on-campus employment during her/his studies, not to exceed 20 hours per week. No authorization is required from the Designated School Official (DSO) at the student's school or from the USCIS. Additionally, in some very limited circumstances, an F-1 student may receive authorization to engage in off-campus employment that is affiliated educationally with the school. An example would be when a student's graduate research assistantship involves working off-campus under the supervision of his/her professor.
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On-campus work is also permitted between academic levels (e.g. when moving from a bachelor's degree to a master's degree program or from a master's program to a Ph.D. program) at the same school. In order to engage in such employment, the student must have been issued Form I-20 to begin a new program and must enroll for the next regular academic year. If one transfers to a different school between academic programs, then s/he may work on campus at the school that is responsible for the student's SEVIS record. As the transfer is complete on the program release date, the former school is responsible for the student's SEVIS record before that date and the new school will take jurisdiction over the student's SEVIS record after that date. There is no requirement that on-campus employment be related to the student's course of study.
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Practical Training for an F-1 Student
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There are two types of Practical Training as applied to the F-1 student: Curricular Practical Training (CPT) and Optional Practical Training (OPT). Students enrolled in an intensive English language program are not eligible for Practical Training. Both OPT and CPT may be granted for part-time and full-time employment. In addition, to be eligible, the student must have been enrolled one full academic year prior to apply for training authorization. There are some graduate programs that require participation in CPT during the first year of study. In such a case, CPT may be immediately available to the student who has not met the requirement to be enrolled for a full year.
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CPT for the F-1 Student
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CPT may not be authorized without a job offer from a specific employer. While there is no limit on the maximum time allowed for CPT, it has to be completed before the program end date. The most important caveat is that one year of full-time CPT employment eliminates eligibility for OPT. In addition, an F-1 student who has had full-time CPT authorization for one calendar year, will not be eligible for OPT authorization. Part-time CPT does not affect the student's eligibility for OPT. The USCIS authorization is not required as CPT is authorized by the school's DSO.
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The F-1 Student and OPT
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As stated above, OPT is available both pre- and post-completion of study. Classes of students not eligible for pre-completion OPT include students enrolled in intensive English language programs who are not eligible for any practical training and F-3 "border commuter students" (i.e. students who live in Mexico or Canada while attending U.S. colleges or universities).
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An F-1 student is eligible for twelve months OPT per academic level. A student with a degree classified as within science, technology, engineering and mathematics (STEM) may be eligible for a 17-month extension, as discussed below. The twelve months of OPT should be completed within 14 months after graduation. This means that a student may apply for the OPT start date two months after graduation. This time should not be confused with the 60-day grace period for which the student is eligible after the OPT end date. In addition, a student must apply no sooner than 90 days before becoming eligible for either pre-completion or post-completion OPT and no later than 60 days after graduation for post-completion OPT. The OPT application must be received by the USCIS no later than 30 days after the DSO made a recommendation for OPT.
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Since April 8, 2008, students with STEM degrees are eligible for one-time 17-month extensions in addition to the initial authorization for 12 months post-completion OPT, if certain criteria are met. For additional information on the 17-month extension eligibility, read our April 9, 2008 article F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis.
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A student may be authorized for full-time OPT only when the school is not in session before the completion of study and after graduation. A student still pursuing his or her degree is limited to part-time OPT when the school is in session. Part-time OPT is deducted from the 12-month limit at 50 percent. While there is no job offer requirement, a student must obtain authorization from the USCIS. In order to maintain F-1 status while on OPT, a student must not have more than a total of 90 days of unemployment during the initial 12 months of OPT authorization, and no more than total of 120 days of unemployment if authorized for the additional 17 months of OPT.
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Off-Campus Employment for an F-1
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An F-1 student may also be eligible for off-campus employment, under provisions that are separate from the practical training provisions discussed above. There are three situations, not involving practical training, in which an F-1 student may be eligible for off-campus employment. These are: if s/he experiences a severe, unforeseen economic necessity; if s/he has an internship with an international organization; or if the employment is based on the Special Student Relief Program.
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Severe Economic Hardship
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In the first instance, of severe economic hardship, the student must be in F-1 status for at least one full academic year prior to making the request. S/he must prove to the USCIS that employment is necessary due to severe economic hardship caused by circumstances beyond his or her control. The student also must show that these circumstances were unforeseen at the time s/he applied for admission to the school. An example is when one was relying on financial support from a sponsor in the student's native country and the sponsor is unable to continue support because of illness, death, or natural disaster. Authorization is granted by the USCIS in one-year increments until the program end date. The authorization is for employment not to exceed 20 hours per week while school is in session, but can be full time during school breaks. It does not have to relate to the student's course of study and can also be used for on-campus employment.
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F-1 Work and International Organizations
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In the second instance, an F-1 student may be authorized for employment with a recognized international organization under the International Organization Immunities Act. A list of qualifying international organizations can be found on the GPO Access WebSite. There is no waiting period for this type of employment, but the student must complete employment before reaching his/her educational objective. The USCIS will grant employment authorization in increments of one year or until the date of expected graduation, whichever is shorter. The work does not have to relate to the student's course of study, but it usually does because of the hiring needs of international organizations. The student must obtain a written offer of employment from a qualifying international organization and apply for authorization from the USCIS. After commencement of employment, the student must maintain a full course of study.
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Special Student Relief Program
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The third option is the special student relief program. One may only benefit from this program if s/he has been in the United States since June 10, 1998, and if her/his funding came from Indonesia, South Korea, Malaysia, Thailand, or the Philippines. This program benefits a very small number of students.
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Conclusion
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Read Part II of this article, which provides MurthyDotCom and MurthyBulletin readers with information on J-1 and M-1 student employment options, and explains issues of transition from student status to employment-based status after graduation.
[See also, Part 2 of this NewsBrief.]
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