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Student Employment While Under Practical Training

In this year’s State of the Union Address, President Obama made mention of the unfortunate repatriation of international students enrolled in U.S. colleges and universities. His comment is a recognition of the significant contributions of international students and scholars to this country.

The United States gains by allowing foreign students to get training not only in terms of the economic impact of the students’ presence and the diversity and global character that they bring to the workplace, but also because the country benefits from the application of the students’ knowledge which they acquired in their advanced studies.

Apart from formal classroom education, another way that students learn is through practical training. Practical training allows qualified foreign students to gain work experience by applying their academic knowledge to a position directly related to their area of study.

Employment may be authorized for F-1 students enrolled for one full academic year in a Department of Homeland Security (DHS)-approved college, school, university, conservatory, or seminary, except students in English-language training programs.

There are two types of practical training: curricular practical training (CPT) and optional practical training (OPT).

The first type, CPT, is approved by the designated school official (DSO) for an activity that is an integral part of an established curriculum, such as a work-study program, internship or practicum offered through cooperative agreements between a school and an employer.

The DSO issues the student an I-20 with the CPT endorsement after updating the student’s information in the SEVIS, the online database that tracks information on international students and visitors who are in the U.S. under the F visa, among others. The I-20 with the CPT endorsement constitutes the student’s employment authorization.

There is no limit as to the duration of part-time (20 hours or less) or full-time CPT, but a student who has one year of full-time CPT may no longer be granted OPT at the same academic level. Part-time CPT is not accumulated or deducted from OPT.

The other type of practical training, OPT, is not limited to students who are currently enrolled in any class. Pre-completion OPTs are available for students on a part-time basis during school sessions, and on both part- and full-time basis during annual vacations and school breaks for students who are enrolled and will register for the next school session.

A maximum of 12 months OPT authorization is allowed for each educational level. This means that a student can have 12 months of OPT each for the bachelor’s, master’s, and doctoral levels. A one-time 17-month STEM extension of a post-completion OPT is possible for F-1 students who earn a degree in science, technology, engineering, or mathematics.

According to a policy guidance, employment under OPT may be part-time or full-time employment. It may be for a single or for multiple employers, for multiple short-term employers, for an agency or consulting firm, or for the student him/herself as the business owner. Unpaid volunteer work and internships are also allowed. Moreover, the student may perform work as a contractor paid on tax form 1099 and need not be an employee. However, the employment practice must not be in violation of labor laws, and in all cases the employment must be directly related to the student’s major area of study.

The student initiates the process by asking the DSO to recommend the OPT. The DSO makes such recommendation by issuing a Form I-20 with the OPT endorsement. The student will then file Form I-765 with the USCIS. If the application is approved, the student will receive a Form I-766 Employment Authorization Document. Regulations require the student to report any change of name or address or interruption of employment to the DSO.

In cases where their employers are willing to continue their employment under an H-1B visa, foreign students most of the time encounter the “cap gap” – the period between the expiration of the OPT and the start of their H-1B status, which usually occurs on October 1 of each year. Because of the limited number of available H-1B visas, highly qualified students often face difficulty in continuing their employment.

In an effort to remedy this, the USCIS implemented the “cap gap” rule which offers automatic extension of duration of status and any OPT employment authorization until October 1 of the fiscal year where the student is the beneficiary of a petition requesting a change of status to H-1B. This will allow the student to remain and continue working in the U.S. until the change of status takes effect.

Changing F-1 Student’s Status to H-1B

To change a nonimmigrant status to another, an applicant must be in lawful status not only up to the time that the application is filed but also up to the time when the new status becomes effective. 

In the case of a change to cap subject H-1B for fiscal year 2011 that starts on October 1, 2010, the applicant must have a valid status until that date. If the applicant is out of status, he/she is required to leave the U.S. and apply for H-1B visa at a U.S. consulate abroad. 

The cap refers to the 65,000 annual numerical limitation imposed on initial H-1B visas. In the last several years, the number of H-1B petitions filed exceeded the cap. The latest United States Citizenship and Immigration Services (USCIS) report shows that so far, 13,500 petitions were received since the start of the filing period on April 1. It is expected that the cap will again be reached before the end of 2011 fiscal year. 

There is a new immigration regulation that automatically allows certain students with a pending or approved H-1B petition to remain in the U.S. during the time when the F-1 status and work authorization would otherwise expire. This regulation provides a way to fill what is referred to as the cap gap so that the students do not have to go abroad to obtain their H-1B visas. 

An example of a cap gap occurs when a student’s optional practical training (OPT) ends in the spring and his/her status expires 60 days after that, leaving a gap of several months before the H-1B status begins on October 1. 

To qualify for the cap gap extension, the H-1B petition must be filed while the student’s authorized duration of status (DS) is still in effect (including any OPT period and the 60 day preparation time known as the grace period.) 

Once the petition is timely filed, the cap gap extension begins and will continue until the adjudication of the petition is completed. To prove continuing status, the student should obtain an updated Form I-20 from his/her designated school official. 

If the H-1B petition is subsequently rejected, denied or revoked, the student will be entitled to the standard 60-day grace period to prepare to depart unless the denial or revocation is based on fraud, misrepresentation or status violation. The grace period begins on the date that the letter of rejection, denial or revocation is postmarked. 

If the H-1B petition is denied or withdrawn, the student may apply for a STEM OPT extension provided that his/her degree is included on the STEM designated degree program list and the application is made within ten (10) days of the denial or withdrawal. STEM refers to degrees in science, technology, engineering and mathematics. Students who obtained such degrees are eligible for a 17-month extension in addition to the twelve (12) months initially granted. 

The student who is granted an automatic extension cannot travel outside the U.S. during the cap gap period. If the student wants to travel, he/she will have to apply for an H-1B visa at a U.S. consulate abroad.

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