GENERAL INFORMATION ABOUT THE OPTIONAL PRACTICAL TRAINING INTERIM FINAL RULE (IFR) (SECOND PART)

Lal Varghese, Attorney at Law, Dallas

A student must work at least 20 hours per week in a qualifying position to be considered employed. If a student has a variable schedule, within a month, it should average out to at least 20 hours per week. Each day (including weekends) during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. OPT authorization begins on the employment start date shown on the student’s EAD. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job are not included in the calculation of time spent unemployed. This 10 day exception also applies to the first 10 days from the start date on the student’s EAD. All OPT employment, including post-completion OPT, is required by 8 CFR 214.2(f)(10)(ii)(A) to be in a job that is related to the student’s degree program.
For students who are not on a STEM extension, this employment may include: Paid employment. Students may work part time (at least 20 hours per week when on post-completion OPT) or full time. Students may work for more than one employer, but all employment must be related to each individual student’s degree program and for pre-completion OPT cannot exceed the allowed per week cumulative hours. Students, such as musicians and other performing artists, may work for multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration. Work for hire. This is also commonly referred to as 1099 employment where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by DHS, students should be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company. Self-employed business owner.
Students on OPT may start a business and be self-employed. The student should be able to prove that he or she has the proper business licenses and is actively engaged in a business related to his or her degree program. Students on post-completion OPT should be able to provide evidence showing they worked an average of at least 20 hours per week while employed by the agency. Students may work as volunteers or unpaid interns, where this practice does not violate any labor laws. The work should be at least 20 hours per week for students on post-completion OPT. A student should be able to provide evidence, acquired from the student’s employer, to verify that he or she worked at least 20 hours per week during the period of employment.
Students authorized for an OPT STEM extension must work at least 20 hours per week for an E-Verify employer in a position directly related to each individual student’s STEM degree. For students who are on a STEM extension, this employment may include: Paid employment. All employment during the STEM extension must be paid employment. Volunteer experience does not count as employment for the purpose of maintaining F-1 status during the STEM extension. Students may work for more than one employer, but all employment must be related to each individual student’s degree program and all employers must be enrolled in E-Verify. Work for hire. This is also commonly referred to as 1099 employment where an individual performs a service based on a contractual relationship rather than an employment relationship. The company for whom the student is providing services must be registered with E-Verify.
If requested by DHS, students must be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company. Students on a STEM extension can start a business and be self-employed. In this situation, the student must register his or her business with E-Verify and work full time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to his or her degree program. Students on a STEM extension may be employed by an employment agency or consulting firm. The employment agency or consulting firm must be registered with E-Verify, but the third parties contracting with the agency or firm (for which the student is providing services) need not be students on a STEM extension are allowed to volunteer, incidental to their status. This means that volunteer work is allowed but does not count as employment for the purpose of maintaining F-1 status.
Students may work for multiple employers, but all the employers must be enrolled in E-Verify. SEVP recommends that students maintain evidence — for each job — of the position held, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager and a description of the work. If it is not clear from the job description that the work is related to the student’s degree, SEVP highly recommends that the student obtain a signed letter from the student’s supervisor or manager or the employer’s hiring official stating how the student’s degree is related to the work performed.
DSOs should advise students of the options available and on the potential problems associated with violating status by exceeding the period of authorized unemployment. A student who has exceeded the period of unemployment while on post-completion OPT has violated status unless he or she has taken one of the following actions: applied to continue his or her education by a change of level or transferring to another SEVP-certified school; departed the United States; taken action to otherwise maintain legal status.
A student may work with an expired employment authorization document while a STEM extension is pending since it automatically extend a student’s work authorization for up to 180 days while the student’s STEM extension application is pending. A student may change employers while the STEM extension application is pending with USCIS. However, if the STEM extension period has started, the employer must also be an E-Verify employer. The student must report the change in employment to his or her DSO. The DSO must update the student’s employer information in SEVIS and the student should submit an amended Form I-765 to the appropriate USCIS Service Center, providing the new employer’s E-Verify number and a copy of the USCIS receipt notice for the first Form I-765. A brief letter explaining the submission should also be included. There is no fee associated with submitting the amended Form I-765. A student may not travel outside of the United States if his or her employment authorization document expires and the STEM extension request is pending with USCIS. The student must wait to receive the new employment authorization document. A student may change employers during the STEM extension. However, the employer must also be an E-Verify employer. The student must report the change in employment to his or her DSO. (Concluded)

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com or www.indiaimmigrationusa.blogspot.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.