New Guidance Clarifies Student & College Obligations in Documenting OPT-Employment Relationship

A student in F-1 status typically is eligible to participate in optional practical training (OPT) upon completion of the degree program or, in some circumstances, before graduation. The purpose of OPT employment is to provide the foreign national student with an opportunity to apply the knowledge gained inside the classroom to practical, on-the-job training and employment. In keeping with the purpose of OPT, employment authorized under OPT is limited to employment with a direct relationship to the student’s major area of study.

On September 27, 2019, the Student and Exchange Visitor Program (SEVP) published new guidance informing both F-1 students and designated school officials (DSOs) of how a student may establish the relationship between the OPT employment and the student’s major area of study. This guidance applies to both a student’s initial OPT period and the 24-month OPT extension for a student with a science, technology, engineering, or math (STEM) degree.

Practical Training Must be Related to a Student’s Major; Cannot Rely on Minor

The new guidance reminds students that the practical training (i.e. OPT employment) must be related to the student’s major. One cannot rely on a minor in a different area of study as the justification for OPT work authorization.

In some cases, there may be an overlap between a student’s major and minor. For instance, if the major is in computer science and the minor is in network security, and the student is working as a network security engineer, the duties of the position could apply to both the major of computer science and the minor of network security. However, in a case in which the student has two distinct majors and minors, the student should only accept OPT employment related to the major.

Establishing Direct Relationship Between Job and Major Field of Study

Under the new guidance, an F-1 student who is planning to work based on OPT, or who has received an offer of employment, is required to provide the university’s DSO with a written description of how the practical training opportunity relates to the student’s major area of study. This statement must include:

• the student’s job title.
• the employer’s name.
• the student’s major area of study.
• whether the position is full time or, if not full time, the average hours worked per week.
• a brief explanation of how the position relates to the student’s major area of study, which should include an explanation of the job duties, and a connection between the duties and the student’s major area of study.

The student has the option of providing this written explanation by either uploading the statement to the SEVP student portal, or by providing it to the DSO in a different manner (e.g., in person, via eMail). The student should provide the above information to the DSO any time the individual is moving to a different position or employer.

Note that, even before the student has secured a job, it is still possible to request a recommendation from the university’s DSO for the initial 12-month period of OPT. If this occurs, the student should update the DSO with the above information related to the position, once a job is secured.

Obligations of DSO to Retain and Evaluate Explanation Provided

After the DSO receives the written statement from the student, the DSO is required to review the statement and make a determination as to whether there is a direct relationship between the employment and the major area of study. Specifically, under the new guidance, SEVP directs the DSO to make a case-by-case determination as to whether there is a “logical connection” between the duties involved in the offered position, and the student’s major area of study.

Generally, the DSO should be able to make this determination based solely on the student’s description of the employment. However, in cases where the DSO finds the information provided by the student to be an insufficient explanation of the position, the DSO should ask the student for additional evidence to evaluate the employment and its connection to the student’s major area of study.

The school is required to keep the F-1 student’s explanation, either in SEVIS or offline in the student’s school record. If the student’s written explanation is not contained with the SEVIS portal, the DSO is required to make a notation in the student’s SEVIS record that confirms that the student’s written explanation has been received by the DSO who will retain the statement in the student’s school records.

Guidance Provides Examples of Written Explanations

The SEVP guidance also contains sample explanations of how a student’s employment is directly related to the major field of study.

• Bachelor’s Degree in Electrical Engineering: I work full time as an electrical engineer at ABC Corp., a government contractor. In my job, I analyze client requirements for electrical systems and provide them with cost estimates of such systems. My work requires understanding of electrical circuit theory, which I studied in depth at the University of ABC.
• Bachelor’s Degree in Business: I work full time as a loan officer at the mortgage company, Happy Homes, where I meet with clients and evaluate, authorize, and recommend approval of loan applications. On a daily basis, I use the knowledge I gained in my credit analysis, sales and marketing classes that I took as part of my major program of study.
• Ph.D. in Computer Science: I am employed as a computer and information research scientist at ABC Research Institute. I work as part of a team of scientists and engineers that designs experiments to test the operation of various software systems. My work builds on research in complex algorithms and machine learning, which I studied as part of my dissertation.

Increased Audits Highlight Importance of Compliance with OPT Program

Importantly, the new SEVP guidance does not replace the obligation for a STEM OPT worker and that person’s employer to complete and adhere to a form I-983 training plan. Compliance with this is critical, as U.S. Immigration and Customs Enforcement (ICE) has increased random site inspections of the STEM OPT program. In performing a STEM OPT site inspection, the ICE agent typically notifies the employer 2-to-3 days prior to the date of the visit to give the employer time to gather the necessary documents and ensure that the STEM OPT employee and manager are available to answer questions related to the STEM OPT training.

Conclusion

It is very important that any F-1 student working pursuant to OPT employment follow all of the relevant guidance and rules. This is especially important in order to avoid a violation of F-1 status. The F-1 student should keep the DSO informed of any changes in employment to ensure compliance with this new policy. In addition, the F-1 student should consult independently with a competent immigration attorney to ensure maintenance of F-1 status.

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