SEVP Policy Guidance 0801-02 Updates to Post-Completion Optional Practical Training.
Last updated 4/23/2010
How many hours does a student need to work per week during post-completion OPT (including the 17-month extension) to be considered employed?
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.
What counts as time unemployed?
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.
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How does travel outside the United States impact the period of unemployment?
Time spent outside the United States during an approved period of post-completion OPT counts as unemployment against the 90/120-day limits, unless the student is either:
Employed during a period of leave authorized by an employer; or
Traveling as part of his or her employment.
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What types of employment are allowed for students during a 17-month extension of OPT?
A student authorized for a 17-month extension must work at least 20 hours per week for an E-Verify employer in a position directly related to his or her DHS-approved STEM CIP.
For a student who is on a 17-month extension, this employment may include
§ Multiple employers. A student may work for more than one employer, but all employment must be related to his or her 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, the student must be prepared to provide evidence showing the duration of the contract period and the name and address of the contracting company.
§ Self-employed business owner. A student on a 17-month 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.
§ Employment through an agency or consulting firm. A student on a 17-month 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.
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Can a student work multiple jobs during a 17-month extension of OPT?
Yes, but all the employers must be enrolled in E-Verify.
How does a student show that employment is directly related to his or her degree program?
SEVP recommends that the student maintain evidence for each job documenting 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 recommends that the student obtain a signed letter from his or her hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.
What is the effect on a student’s status if the student exceeds the period of unemployment?
A student who has exceeded the period of unemployment while on post-completion OPT has violated his or her status unless he or she has taken one of the following actions:
Applied to continue his or her education by a change of education level or transferring to another SEVP-certified school
Departed the United States
Taken action to otherwise maintain legal status
How will DHS enforce this provision?
A student may be denied future immigration benefits that rely on the student’s valid F-1 status if DHS determines that the student exceeded the limitations on unemployment.
Additionally, ICE/SEVP may examine SEVIS data for an individual, a selected group or all students on post-completion OPT and terminate a student’s record if it fails to show that the student maintained the proper period of employment. In such cases, the student will be given an opportunity to show that he or she complied with all OPT requirements, including maintaining employment.
When does the student need to file for the extension?
The student must ensure that the Form I-765, supporting evidence and fee payment reach the proper USCIS Service Center before his or her current OPT expires. USCIS recommends that students file within 90 and 120 days of the expiration date of the current OPT.
Can a student apply for the 17-month extension when he or she is within a period of cap gap extension?
Yes, a student can apply for the 17-month extension during the cap gap extension of OPT. The student will need to have his or her employer request the withdrawal of the approved or pending H-1B petition in time for
USCIS to effectively accept the withdrawal prior to the October 1 start date in order to avoid changing status to H-1B on that date.
To avoid a denial based on the scheduled expiration of post-completion OPT, the student should include mention (and supporting evidence) of his or her cap gap 17-month extension when filing during the cap gap period.
Can the student travel outside of the United States if his or her employment authorization document expires and the 17-month extension request is pending?
No, the student must wait to receive the new employment authorization document.
Will a student receive personal notification when he or she has a cap gap extension?
A student will not automatically receive notification when he or she has a cap gap extension. The student must request a Form I-20 from his or her DSO showing the period of the extension. In some cases, the student may need to notify his or her DSO that he or she is eligible for the extension.
How will a student know he or she has a cap gap extension?
The student must remain in contact with the employer that filed the Form I-129 Petition for a Nonimmigrant Worker on his or her behalf and with his or her DSO.
Until USCIS issues receipt notices, only the petitioning employer will know when the application was properly filed or wait listed. The student may obtain evidence from the employer for either of these two events and ask the DSO to request a data fix from SEVP.
When USCIS has receipted an H-1B petition, the information is entered into the Computer Linked Application Information Management System (CLAIMS, the system used by the USCIS Service Centers) and will be used to update SEVIS. However, there are some cases where the data from the interface does not properly update SEVIS. A student is responsible for checking with his or her DSO and verifying that his or her SEVIS record has been updated with the extension.
If a student is eligible for the cap gap extension, can he or she continue to work while SEVP is updating the student’s SEVIS record with the extension?
Yes, if a student is eligible for the cap gap extension, he or she can continue to work while the update is being processed by SEVP. The updated Form I-20 is only intended to provide a student with proof of the cap gap extension. The extension itself is automatic, based on the pending or approved H-1B petition.
Can a student travel outside the United States during a cap gap extension period and return in F-1 status?
Yes, provided the student has a valid EAD. See 8 CFR 214.2(f)(13). A student may choose to leave the United States and obtain an H-1B visa to return to the United States to assume H-1B employment.
SEVP recommends that a student not travel outside the United States during the cap gap extension, if possible, as USCIS will consider a change-of-status application to be abandoned if the applicant leaves the country while the application remains pending. Thus, a change-of-status petition from F-1 to H-1B filed on behalf of a student with a cap gap extension who departs the United States before the application is adjudicated could be denied.
Do the limits on unemployment time apply to a student with a cap gap extension?
Yes, the 90 day limitation on unemployment continues during the cap gap extension.
What are the restrictions on the type of employment for a student with a cap gap OPT?
See the section below.
What types of employment are allowed for regular pre- and post-completion OPT?
All OPT employment, including post-completion OPT, must be in a job that is related to the student’s degree program.
For students who are not on a 17-month extension, this employment may include:
§ Multiple employers. A student may work for more than one employer, but all employment must be related to the student’s degree program and, for pre-completion OPT, can not exceed the allowed per week cumulative hours.
§ Short-term multiple employers (performing artists). A student, such as a musician or other type of performing artist, 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, the student must be prepared to provide evidence showing the duration of the contract period and the name and address of the contracting company.
§ Self-employed business owner. A student on OPT may start a business and be self-employed. 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 the student’s degree program.
§ Employment through an agency or consulting firm. A student on post-completion OPT must be able to provide evidence showing he or she worked an average of at least 20 hours per week while employed by the agency.
§ Paid employment. A student may work part time (at least 20 hours per week when on post-completion OPT) or full time.
§ Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.
REPORTING FOR A STUDENT ON POST-COMPLETION OPT
Students on all types of post-completion OPT — regular, cap gap extension or 17-month extension — have reporting obligations.
All must report any change of address within 10 days, any legal name change and interruptions of employment.
A student with regular OPT or a cap gap extension should see directions in the section on what students should report to ensure that his or her status does not expire due to excessive unemployment time.
A student with a 17-month extension should follow the directions in the section on responsibilities for students with a 17-month extension.
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