III. F-1 STUDENTS - EMPLOYMENT OPTIONS

Once the F-1 student is admitted to the U.S., there are several options for working. Upon arrival, all foreign students may work on-campus at the school they are attending for up to 20 hours per week, without limitation.  Off-campus work up to 20 hours a week is only allowed after students complete one year of school in the U.S., as long as the job is related to their field of study.  All work requires school approval. There are two types of off-campus work while the F-1 student is in school: curricular practical training (CPT) and optional practical training (OPT).  CPT is in conjunction with coursework and does not need approval from the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS). OPT is separate from course work and does require USCIS approval. After the F-1 student graduates, OPT is the only way to work lawfully in the U.S. After graduation, full-time OPT work is allowed for up to 12 months.  If the job is in a STEM field, USCIS may approve an additional 17 months for OPT work, making the total work time 29 months.  
 
 
 
 
A. On-campus employment 
Students are allowed to work on-campus if it is “educationally affiliated” with the school  or “directly provide services for students.”29 Students may only work up to 20 hours per week when school is in session, and full-time during breaks and vacation.30 Students must obtain permission from their school and apply for and receive a social security number before starting work. 
 
1. No real limit on job type 
Regulations provide that the on-campus job must be an “integral” part of the student’s educational program.31 However, DHS apparently does not consider the former criteria to be a prerequisite since it is not even mentioned in DHS’ own training program for schools that describes the characteristics of on-campus employment.32
 
2. Prohibition on U.S. worker displacement at on-campus jobs
F-1 regulations state that on-campus jobs offered to foreign students may not displace a U.S. resident.33 However, there are no other rules elaborating how – or even whether - to determine whether foreign student workers will in fact replace U.S. workers.  Moreover, there is no required job posting, no U.S. worker recruitment, no labor market test and no role for the U.S. Department of Labor.  DHS does not appear to have published guidance about this regulation.34
 
B. Off-campus Employment 
 
1. Severe economic hardship
F-1 students may be allowed to work off-campus in cases of economic necessity if on-campus work is not available or insufficient.  An eligible F-1 student may request that his or her school recommend off-campus employment authorization based upon severe economic hardship caused by unforeseen circumstances beyond the student's control.35  For example, “the loss of financial aid or on-campus employment without fault on the part of the student, substantial fluctuations in the value of currency or exchange rate, inordinate increases in tuition and/or living costs, unexpected changes in the financial condition of the student's source of support, medical bills, or other substantial and unexpected expenses” are all mentioned in the regulations defining hardship.36 Working off-campus requires both school and DHS approval.37
 
a) Employment Authorization application to USCIS
The student submits to USCIS their economic hardship application for employment authorization on Form I-765, the required fee, along with the Form I-20 showing the school’s recommendation for off-campus employment and any supporting materials.38 If the application is denied, USCIS must give the reasons for the denial but there is no right to an appeal.  If employment is authorized, an Employment Authorization Document (EAD) will be issued.39
 
b) Employment Authorization Document duration and job portability
The employment authorization document (EAD) to work off-campus may be granted in one-year intervals up to the expected date of completion of the student's current course of study.40 An off-campus EAD may be renewed if the student is maintaining status and good academic standing.41 A student may work for any employer with the EAD.  In other words, unlike temporary nonimmigrant work visas such as the H, J and L subcategories, the EAD is not tied to a particular employer.  An F-1 student may not continue to work off campus after graduation even if the EAD has not yet expired.  
 
c) Work hours
F-1 students who work off-campus with a valid EAD for economic necessity are only allowed to work up to 20 hours per week while school is in session.42 Students may work full time during school breaks.43
 
 
 
 
2. Curricular Practical Training
Curricular Practical Training (CPT) is available after the F-1 student completes one year of academic study.48 CPT must be “an integral part of an established curriculum” and be related to the student’s field.49 CPT programs can include work/study, internships, cooperative education, “or any other type of required internship or practicum, which is offered by sponsoring employers through cooperative agreements with the school.”50  There is “no restriction on the number of hours a student can work per week while in CPT.”51 Students who engage in one year or more of CPT are generally not eligible for OPT.52  There is an exception to the one academic year prerequisite for students enrolled in a graduate program that requires immediate training.53
 
 
 
 
a) No specific wage required
There is no required wage for CPT work.  DHS specifically states that “there is no restriction on compensation during CPT.”56
 
b) School must approve CPT work and report to SEVIS
Prior to starting a CPT program, the student must request authorization from their school.57  DHS delegates to the school the responsibility for determining what is appropriate training. If approved, the school will update the Form I-20 with the work endorsement.  Permission from USCIS is not required but the school must update the SEVIS database about the details of the job.  Some schools have adopted a broad definition of what constitutes “integral” training in order to sometimes unlawfully expand the scope of available work opportunities.58
 
3. Optional Practical Training 
Optional Practical Training (OPT) is for work in off-campus directly related to the F-1 student’s area of study.59  Students may work at OPT jobs only after receiving approval from USCIS.60 OPT jobs are allowed both before and after the student graduates.  To qualify for pre-completion OPT (while the student is still in school), the F-1 visa holder must first have completed a full academic year at the college level.61 Pre-completion OPT is part-time while school is in session and is full-time during breaks.62 Post-completion OPT is available during the 14 month period after graduation.63 However, a 17-month extension of OPT may be granted for graduates in science, technology, engineering and mathematics.64
 
a) School and USCIS must authorize OPT employment 
Both the school and USCIS authorize OPT work.  Students may apply for pre-completion OPT within 90 days of the end of the first academic year and for post-completion OPT within the window of 90 days before and 60 days after graduation.65 The first step in the process is for F-1 students to request that the school recommend OPT. Upon approval, the school provides the student a signed Form I-20 indicating the OPT recommendation and enters that information on SEVIS.66 Next, the student must apply for employment authorization from USCIS by filing Form I-765, Application for Employment Authorization along with the required fee and supporting documents.67 Students must file their Form I-765 with USCIS within 30 days of the school’s entering the OPT recommendation on SEVIS.68  If USCIS approves, the F-1 student worker will receive an Employment Authorization Document (EAD).69 A student may work for any employer with the EAD, as long as that employment fits within the OPT program guidelines.  In other words, unlike temporary nonimmigrant work visas such as the H, J and L subcategories, the EAD is not tied to a particular employer. A student may not begin work until the approved start date shown on the EAD.70 If USCIS denies the employment authorization application, the reasons for denial will be given, but there is no chance for appeal.71
 
b) STEM extensions for post-degree OPT work
F-1 graduates in science, technology, engineering or mathematics (STEM) fields are eligible for an extension of up to 17 months to continue work in their OPT jobs.72  USCIS has published a list of more than 300 possible degrees approved for the STEM extension.73 In other words, graduates with any of these STEM degrees may work with their F-1 visa for a total of 29 months in the U.S.74 For the post-completion OPT extension, students with valid F-1 status must be enrolled in the initial twelve-month OPT program with a job in their degree field.75  To obtain the extension, the student must submit another Form I-765, with another fee, to USCIS prior to the expiration date of the student's current EAD.76
 
(1) H-1b visa via STEM OPT extension 
The STEM OPT extensions started in 2008.  The decision followed a 2004 DHS regulatory rule change to lower the cap on H-1B visas to 65,000 per year.  DHS announced that the STEM OPT extension was designed to allow employers “two chances to recruit these highly desirable [foreign] graduates through the H-1B process, as the extension is long enough to allow for H-1B petitions to be filed in two successive fiscal years.”77 Now, OPT is regarded as the conventional route for an F-1 student worker to convert to an H-1B worker.78
 
(2) Cap-gap extension for F-1 to H-1B
Generally, F-1 visas are valid for the temporary period defined as the “time during which an F-1 student is pursuing a full course of study” at an approved school or is in a practical training program.79 The duration of authorized OPT work depends on the F-1 graduate’s field of study, and may last up to 29 months.  However, there is another 6 month extension for OPT workers whose employers file paperwork necessary to convert them to H-1B workers.80 This extension is called the “cap-gap” because F-1 students may remain in OPT jobs while waiting for USDOL and USCIS to process their employer’s H-1B application, without being forced to leave the United States.81 F-1 students in OPT jobs who do not work for an employer willing to hire them as H-1B workers do not get extra time.  When their OPT period expires they must leave the country within 60 days.  
 
c) Job Portability 
Students who work in OPT jobs may work for multiple employers, work for hire, be a self-employed business owner, or work through an agency or consulting firm.82 Little information is published about to what extent F-1 graduates change employers during their OPT programs.  However, if F-1 workers are depending on their current employer to sponsor them for H-1B status upon the expiration of the 29 month OPT period, they may lack the practical ability to change jobs.
 
 
 
 
 
C. Taxes
Employers do not have to pay employment taxes on F-1 student workers’ wages – which can be up to 8% – because they are exempt from this requirement.85  F-1 students who work will usually pay state and federal income taxes, depending on whether they are categorized for tax purposes as either non-resident aliens or resident aliens. A non-resident alien is only taxed on income earned in the U.S., while a resident alien pays tax on income earned both inside and outside the U.S.  The Internal Revenue Service publishes guidance for foreign workers because federal tax rules are complicated and depend on each individual situation.
 
D. No F-1 student employment during strike or labor dispute
F-1 students may not work at any location where there is a strike or other labor dispute involving a work stoppage of workers.  In these situations, “employment authorization, whether or not part of an academic program, is automatically suspended” when the U.S. Department of Labor certifies that workers in the same “occupation as F-1 students are striking at the place of employment.”   Employers are prohibited from transferring F-1 students working at other facilities to the facility where the work stoppage is occurring.
 
  • 29. 8 C.F.R. § 214.2(f)(9)(i).
  • 30. 9 FAM 41.61 N13.1.
  • 31. 8 C.F.R. § 214.2(f)(9)(i).
  • 32. U.S. Department of Homeland Security, ICE, Module 4: Employment and Practical Training, available at http://www.ice.gov/exec/sevp/Module4.htm.
  • 33. 8 C.F.R. § 214.2(f)(9)(i).
  • 34. U.S. Department of Homeland Security, ICE, Module 4: Employment and Practical Training, available at http://www.ice.gov/exec/sevp/Module4.htm. DHS advises schools to have students “obtain a letter from the prospective employer concerning the nature of the job and the number of work hours.” However, neither the employers, students, nor the schools are required to show that U.S. workers will not actually be displaced by the foreign-student workers.
  • 35. 8 C.F.R. § 214.2(f)(9)(ii)(C).
  • 36. Id.
  • 37. 8 C.F.R. § 214.2(f)(9)(ii) and (iii).
  • 38. 8 C.F.R. § 214.2(f)(9)(ii)(D)(F)(1).
  • 39. 8 C.F.R. § 214.2(f)(9)(ii)(D)(F)(2).
  • 40. Id.
  • 41. Id. The employment authorization is automatically terminated whenever the student fails to maintain status.
  • 42. 8 C.F.R. § 214.2(f)(9)(ii)(A).
  • 43. Id.
  • 48. 8 C.F.R. § 214.2(f)(10)(i).
  • 49. Id.
  • 50. Id.
  • 51. U.S. Department of Homeland Security, ICE, Module 4: Employment and Practical Training, available at http://www.ice.gov/exec/sevp/Module4.htm.
  • 52. 8 C.F.R. § 214.2(f)(10)(i) (“Students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.”).
  • 53. Id.
  • 56. U.S. Department of Homeland Security, ICE, Module 4: Employment and Practical Training, available at http://www.ice.gov/exec/sevp/Module4.htm.
  • 57. 8 C.F.R. § 214.2(f)(10)(i).
  • 58. B. McMurtrie, Chronicle of Higher Education, Foreign students pour back into the U.S., (Nov. 21, 2008) available at http://www.uic.edu/classes/actg/actg593/Readings/Education/Foreign%20Stu....
  • 59. 8 C.F.R. § 214.2(f)(10)(ii)(A).
  • 60. Id.
  • 61. 8 C.F.R. § 214.2(f)(11)(i)(B)(1).
  • 62. 8 C.F.R. § 214.2(f)(10)(ii)(A)(1), (2).
  • 63. 8 C.F.R. § 214.2(f)(10)(ii)(A)(3).
  • 64. Id., 8 C.F.R. § 214.2(f)(10)(ii)(C).
  • 65. 8 C.F.R. § 214.2(f)(11)(i)(B).
  • 66. 8 C.F.R. § 214.2(f)(11)(i), (ii) (“The DSO must update the student's SEVIS record with the DSO's recommendation for OPT before the student can apply to USCIS for employment authorization. The DSO will indicate in SEVIS whether the employment is to be full-time or part-time, and note in SEVIS the start and end date of employment.”).
  • 67. 8 C.F.R. § 214.2(f)(11)(i)(A), (B).
  • 68. Id.
  • 69. 8 C.F.R. § 214.1(f)(11)(iii).
  • 70. 8 C.F.R. § 214.2(f)(11)(i)(D) (“Employment authorization will begin on the date requested or the date the employment authorization is adjudicated, whichever is later.”).
  • 71. 8 C.F.R. § 214.1(f)(11)(iii)(B), (C).
  • 72. 8 C.F.R. § 214.2(f)(10)(ii)(C).
  • 73. U.S. Department of Homeland Security, Immigration and Customs Enforcement, STEM-Designated Degree Program List, 2011 Revised List, available at http://www.ice.gov/doclib/sevis/pdf/stem-list-2011.pdf.
  • 74. 9 FAM 41.61 N13.5-1.
  • 75. 8 C.F.R. § 214.2(f)(10)(ii)(A).
  • 76. 8 C.F.R. § 214.2(f)(11)(i)(C) (“If a student timely and properly files an application for a 17-month OPT extension, but the Form I-766, Employment Authorization Document, currently in the student's possession, expires prior to the decision on the student's application for 17-month OPT extension, the student's Form I-766 is extended automatically.”). See also U.S. Department of Homeland Security, Immigration and Customs Enforcement, SEVP Policy Guidance: 0801-2, at 11-12 (Apr. 25, 2008) available at http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_04062009.pdf.
  • 77. U.S. Department of Homeland Security, USCIS, Extension of Optional Practical Training for Qualified Students, (April 10, 2008), available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176....
  • 78. R. Wasem, Congressional Research Service, U.S. Immigration Policy on Temporary Admissions, at 29 (Feb. 28, 2011), available at http://fpc.state.gov/documents/organization/158526.pdf.
  • 79. 8 C.F.R. § 214.2(f)(5)(l); 9 FAM 41.61 N10.
  • 80. 8 C.F.R. § 214.2(f)(5)(iv); 9 FAM 41.61 N13.5-2.
  • 81. 8 C.F.R. § 214.2(f)(5)(vi)(A); 9 FAM 41.61 N13.5-2; U.S. Department of Homeland Security, USCIS, Extension of Post-Completion Optional Practical Training (OPT) and F-1 Status for Eligible Students under the H-1B Cap-Gap Regulations, (April 1, 2011), available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176....
  • 82. U.S. Department of Homeland Security, ICE, SEVP Policy Guidance: 0801-2, at 17, (Apr. 25, 2008) available at http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_04062009.pdf.
  • 85. 26 U.S.C. § 3121(b)(19)(FICA exemption) and 26 U.S.C. § 3306(c)(19) (FUTA exemption); see also Internal Revenue Service, Withholding of Tax on Nonresident Aliens and Foreign Entities, 2011, available at http://www.irs.gov/pub/irs-pdf/p515.pdf.

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