F-1 OPT Employment Options and Requirements for Students

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 24 months of OPT (for a total of 36 months) may have no more than a total of 150 days of unemployment during the three-year OPT period in the aggregate. The Murthy Law Firm is regularly contacted by students on OPT and STEM OPT extension who are concerned about complying with the employment requirements. Often, the goal of these students is to learn whether certain options are permitted and likely to be considered proper OPT or STEM OPT employment. Some of these 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 first-year OPT employment may include regular, paid employment, employment through an agency, or volunteer or unpaid internship for at least 20 hours per week working for a sole or multiple employers concurrently. 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 first-year 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 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 while on first-year OPT, as long as the nature of the business relates to the student’s degree program and the student is actively engaged in this business. For a student interested in self-employment, here are the key points to consider:

• It is possible to be self-employed during the first year of OPT, if the nature of the business directly relates to the student’s degree program and the student is actively engaged in the business. Self-employment is not permitted during a 24-month STEM OPT extension.
• A self-employed student must work at least 20 hours per week.
• The student should be able to provide details on the nature and duration of the self-employment and the hours worked for the business if requested by any government agency. It is useful to keep a journal of the business activity throughout the self-employment period as well as save all important business documents (e.g., client contracts, business marketing analysis, internal business product development).
• Self-employment while on OPT is likely to be reviewed closely by the U.S. Immigration and Customs Enforcement (ICE) or the U.S. Citizenship and Immigration Services (USCIS), depending on any future immigration benefit sought. It is therefore important to discuss the limitations with a knowledgeable U.S. immigration attorney based on individual circumstances.

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 first-year 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.

24-Month STEM Extension Employment Requirements

F-1 students on 24-month STEM OPT are subject to a lot more restrictions and limitations with regard to the types of employment they can accept and other requirements. Self-employment and work without pay are not permitted. Additionally, this type of employment requires a sponsoring employer who must be registered with E-Verify and provide direct training and oversight as reflected on Form I-983 signed by both the employer and the student employee under the penalty of perjury. The form also serves as a certification by the employer that the student will actually engage in training, pursuant to STEM Optional Practical Training, and that the employer has the means to provide this training. The form also requires the employer to certify that the employment of the foreign national student does not displace an otherwise qualified US worker. The F-1 student employee on STEM OPT must work at least 20 hours per week per each employer.

Conclusion

Questions regarding permissible options and types of employment while on OPT / STEM 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 them 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’ designated school officials (DSOs) or from knowledgeable, experienced immigration attorneys.

Originally posted 26.Sep.2008, this article has been updated for MurthyDotCom readers.

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