Foreign nationals interested in studying in the U.S. for an extended period of time must obtain a student visa. The most common type of student visa is the F-1 visa. This type of visa allows a foreign national to study at an accredited U.S. college or university or to study English at a university or intensive English language institute.

Other student visa options include: J-1 for participants in exchange programs and M-1 for students pursuing full-time study at vocational or non-academic schools in the U.S. Information on a student or exchange visitor’s stay in the U.S. is monitored and tracked by the U.S. Department of Homeland Security (DHS) and the U.S. Department of State (DOS) through an internet-based system called the Student and Exchange Visitor Information System (SEVIS).

The Role of SEVP

The Student and Exchange Visitor Program (SEVP) implemented by the DHS and the DOS, uses an internet-based system called the Student and Exchange Visitor Information System (SEVIS) to maintain accurate and current information on the status of nonimmigrant students (F and M visa), exchange visitors (J visa), and their dependents (F-2, M-2, and J-2) in the U.S. This ensures that only legitimate foreign students or exchange visitors gain entry to the United States. SEVIS enables schools and educational/exchange program sponsors to transmit mandatory information and event notifications via the Internet to the DHS and the DOS throughout a student or exchange visitor's stay in the United States.

Employment Eligibility Based on a Student Visa

Optional Practical Training (OPT) allows F-1 students to undertake temporary employment in his/her field of study. Until recently, an F-1 student was authorized to undertake up to a total of twelve (12) months of practical training. There have been some amendments to this which are discussed in detail below. F-1 students may either undertake employment before and/or after they complete their studies.

Pre-completion OPT: F-1 students may be authorized by his/her university or college to participate in pre-completion OPT. He/she may do so after first completing one (1) year of academic studies. The pre-completion OPT must be directly related to the foreign student’s area of study though. Students who are authorized to work in pre-completion OPT may only work part-time while school is in session. They can work full-time only when school is not in session (winter and summer breaks).

Post-completion OPT: Employment is authorized after the foreign student has completed his/her area of study (i.e. graduation).

In order to obtain work authorization, F-1 students must first request their Designated School Official – usually their international student advisor - at their school to recommend them for OPT. The school official then endorses the F-1 student’s I-20 form and also updates the SEVIS with this request. Then, the F-1 student must file the form I-765 with the relevant filing fees with the U.S. Citizenship and Immigration Services (USCIS) to obtain the Employment Authorization Document (EAD). It is important to note that the F-1 student must wait for USCIS to approve and issue the EAD to the student before he/she may commence employment.

It is recommended that the F-1 student start applying for the EAD prior to their date of graduation. However, with recent rule change, the F-1 student may apply for the EAD even after their graduation date, and within the 60-day post-graduation grace period.

The Significance of “STEM” Degrees and Filing OPT

The U.S. Department of Education National Center for Education Statistics (NCES) has compiled a list of eligible degree programs related to studies in science, technology, engineering, and mathematics (STEM) degrees. They include, but are not limited to, such degree areas as computer science, engineering, biological sciences, medicine, technologies.

In April 2008, USCIS issued an interim rule that allowed F-1 students who are currently enrolled in STEM degrees, and who are employed by U.S. employers enrolled in the E-Verify employment verification program, and who have received an initial grant of post-completion OPT related to such a degree, to apply for a 17-month extension on the OPT. The participation in the E-Verify program by the U.S. employer is currently on a voluntary basis. The F-1 student must have a bachelor’s, master’s, or doctorate degree included in the STEM designated list. Furthermore, the F-1 student must apply for this OPT extension while he/she is still in their current OPT period.

This program was put in place in large part due to the annual H-1B nonimmigrant temporary worker cap being filled up so rapidly and F-1 students not being given the opportunity to be picked in the H-1B selection process.

H-1B Cap Gap Relief

The H-1B cap is set by the U.S. Congress. Every year, a set number of H-1B visa slots are made available for foreign workers. For the most recent fiscal year, that H-1B cap was 65,000. There are cap exemptions for U.S. master degree holders, as well as non-profit research institutions.

Cap-gap relief kicks in when an F-1 student’s status and work authorization expire in the current fiscal year before he or she may start their approved H-1B employment on October 1. Before cap-gap relief was available, an F-1 student in most cases, had to leave the United States and then return to the U.S. only at the time his or her H-1B status became effective (October 1). Depending on when the student’s status expires, such circumstances could require the student to remain outside the United States for several months. This was often costly and inconvenient for F-1 students in terms of travel expenses, as well as potential delay to return to the U.S. due to unpredictable visa processing times in various U.S. consulates overseas.

However, with the April 2008 interim rule in place, F-1 students are now allowed to remain in the U.S. after their post-completion OPT has completed because their F-1 status is automatically extended to October 1 provided that the F-1 student is the beneficiary of a chosen H-1B petition for the upcoming fiscal year with October 1 start date. However, the automatic extension ends if USCIS rejects, denies, or revokes the F-1 student’s H-1B petition. Most importantly, with the H-1 cap gap relief provision in effect, the F-1 student who is selected in the H-1B petition process is allowed to continue working on post-completion OPT until the start of H-1B employment on October 1 of that year.

Please note: Immigration laws and regulations are constantly changing and this article is provided for informational purposes only and is not to be construed or relied upon as legal advice under any circumstance. Please refer to our legal disclaimer for additional details.

 

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