F-1 OPT Employment Options and Requirements for Students15 Jan 2013
A student in F-1 status, who is on Optional Practical Training (OPT), may have no more than a total of 90 days of unemployment during the regular one-year post-completion OPT period. A student eligible for an additional 17 months of OPT (for a total of 29 months) may have no more than a total of 120 days of unemployment during the 29-month OPT period. The Murthy Law Firm is regularly contacted by students on OPT who are concerned about complying with the OPT employment requirements. Often, the goal of these students is to learn whether certain options are permitted and likely to be considered proper OPT employment. Some of their concerns are discussed below.
Potential for Part-Time and Other Arrangements
With regard to all types of employment, OPT must relate to the student’s program of study. In most (but not all) cases, employment does not need to be full time. Types of OPT employment may include regular, paid employment, employment through an agency, or volunteer or unpaid internship for at least 20 hours per week. Students in the performing arts may need to work for multiple, short-term employers and it may be difficult to document the exact number of hours worked. While on OPT in these situations, students should keep a list of all engagements, the dates / durations of those engagements, and related proof, regardless of the exact number of hours worked.
Potential for Contractual Employment or Self-Employment
Students on OPT may engage in work for hire pursuant to a contractual rather than an employment relationship. If the U.S. Department of Homeland Security (DHS) requests information on a student’s employment in this situation, the student should be able to provide details on the nature and duration of all contractual agreements and the contact information of the contracting company. Once again, it is important to retain documentation.
Most commonly, students want to know if they can start their own businesses while on OPT. The International Student and Exchange Visitor Program (SEVP), which is under the jurisdiction of the U.S. Immigration and Customs Enforcement (ICE), has explained that it is possible to be self-employed, as long as the nature of the business relates to the student’s degree program and the student is actively engaged in this business. If self-employed, the student must work at least 20 hours per week; or, if the work schedule varies, it must average out to 20 hours per week each month. While not specifically stated, this is an area in which the documentation of employment and the nature of the activities may be reviewed closely. So, consider the risks and discuss the possibilities with your immigration counsel.
Volunteering as Possible Employment
Many students are able to obtain experience that is most appropriate to their line of work by engaging in volunteer work or unpaid internships. This is possible during the standard 12-month OPT period. Work as a volunteer or unpaid intern must not violate any labor laws and should not be for less than 20 hours per week. Students should be prepared to document the fulfillment of these requirements upon request.
Volunteer Work on 17-Month STEM Extension Riskier
The USCIS’s 2008 SEVP OPT Policy Guidance contained language explicitly prohibiting the use of volunteer experience to count towards the fulfillment of a student’s employment obligations while in the 17-month extension OPT period. However, in 2010, this policy guidance was revised and replaced by the current version, which eliminated this restrictive language. Absent explicit prohibition of the use of volunteer experience, particularly when such a restriction was previously in place, it would seem logical to conclude that a student engaged in a voluntary position related to his/her degree program would not be considered “unemployed.” Accordingly, volunteer work in a related field would arguably seem to satisfy the requirement of working in a related field during the F-1 student’s OPT timeframe. The matter is not straightforward or completely clear, however. The policy guidance lists the types of experience permitted while on both regular and STEM extension OPT. This list specifically permits the volunteer experience while on regular OPT. The list does not include volunteer work in the list of acceptable forms of employment for STEM extension OPT.
What we are left with is a bit of a grey area in the law, without any explicit statement regarding volunteer work on STEM OPT. Until the government provides clear guidance on this matter, students should be aware that relying on such volunteer work may carry risks.
Questions regarding permissible options and types of employment while on OPT may involve complex scenarios. Students should be cautious about accepting employment that may not be counted toward fulfilling their obligations and, consequently, may result in their exceeding the allowed number of days of unemployment, causing them to fall out of status. They also should diligently keep detailed records of their employment in order to be able to address questions that could arise in the future. When in doubt, students should seek advice from their schools’ advisors or from knowledgeable, experienced immigration attorneys.
Originally posted 26.Sep.2008, this article has been updated for MurthyDotCom readers.
Copyright © 2008-2013, MURTHY LAW FIRM. All Rights Reserved