Optional Practical Training

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Optional Practical Training (OPT) is a period during which undergraduate and graduate students with F-1 status who have completed or have been pursuing their degrees for more than nine months are permitted by the United States Citizenship and Immigration Services (USCIS) to work for one year on a student visa towards getting practical training to complement their education.

On April 2, 2008, the U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff announced a 17-month extension to the OPT for students in qualifying STEM fields. To be eligible for the 12-month permit, any degree in any field of studies is valid. For the 17-month OPT extension, a student must have received a science, technology, engineering, or mathematics degree as listed on the USCIS website.

On May 31, 2008, the Immigration Reform Law Institute filed a lawsuit in federal court on behalf of various organizations and individuals challenging the validity of the 17 month OPT extension. A similar lawsuit in November 2014 challenging the STEM extension was successful, with the Court giving the US government up to February 12, 2016 to formulate new rules. The deadline was subsequently extended by three months.

On March 11, 2016, the Department of Homeland Security published a final rule allowing certain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees, and who meet other specified requirements, to apply for a 24-month extension of their post-completion OPT, giving STEM graduates a total of 36 months of OPT. The 24-month extension will replace the 17-month STEM OPT extension previously available to STEM students (see 73 FR 18944). Eligible students may begin applying for a 24-month STEM OPT extension on May 10, 2016.

There also exists a post-completion Optional Practical Training option for students on M-1 visas, but it is significantly more restrictive than that for F-1 students. Unless otherwise specified, Optional Practical Training is understood to refer to Optional Practical Training for F-1 students.

Video Optional Practical Training

Application and timelines for post-completion OPT

Application process

• First, the international office at the secondary institution (college or university) at which the student is enrolled must recommend the student for OPT with a specified start and end date (with the total time duration requested for OPT being at most one year). This typically involves the student submitting to the international office a proof that he or she will be able to graduate in time to start the OPT, as well as specifying the preferred start and end date.
• After receiving an updated I-20 that shows that the student has been recommended for OPT, the student submits Form I-765, along with some paraphernalia (photos and a fee) to a designated USCIS office address.
• If the student's OPT application is approved, the USCIS sends an Employment Authorization Document (EAD, also called an EAD card because it has the physical form of a card) to the address specified by the student. The "processing time" taken for an OPT is about 3-4 months. This means that students should aim to submit their Form I-765 about 3-4 months before their expected OPT start date (however, the applications are not accepted more than 90 days before the program end date).

The student need not have a job offer when applying for OPT, and does not need to specify his/her job offer in the application. However, the potential employer may need to be consulted regarding the choice of future start date in order to keep the unemployment period to a minimum.

Start and end date

• The start date for post-completion OPT must be at least 1 day and at most 60 days after the completion of the degree program:
• The duration (from start to end date) of post-completion OPT must be at most 1 year (12 months). However, the student has already used up some OPT, whether pre-completion or post-completion, at the same level, then the duration of post-completion OPT is correspondingly shortened to 12 months minus (the duration already used for OPT at that level). In general, post-completion OPT must be done continuously except for multiple post-completion OPTs at the same level but for different degrees (which are separate OPTs but count within the same 12-month limit).

In addition, students need to consider the following when choosing OPT start and end dates:

• The student may wish to consult with potential employers about an optimal start date.
• The student should choose a start date such that he or she expects to get the EAD card by the start date.
• The student should choose an OPT duration, and a start date, so as to make sure that he or she does not go over the unemployment period of 90 days.
• If the student plans to pursue more academic work at the same level later and possibly do OPT with that, the student may prefer not to use the entire OPT duration.

Between graduation and the start date or receipt of EAD card

After the student has graduated from the degree program, the student has a grace period of 60 days for staying in the United States (regardless of whether the student applied for OPT, and regardless of whether the application was approved, rejected, or is pending). However, the student can start OPT employment only after both these conditions are satisfied:

• The student has received the EAD card indicating that the student is approved for OPT employment.
• The start date specified on the student's OPT application (and also on the EAD card) has been reached.

Thus, for instance, if a student delays the OPT application, the student may have a period when the OPT has started but the student cannot begin employment because he or she has not yet received the EAD card.

The 60-day grace period after degree completion can also be used to apply for OPT, prepare to depart from the United States, apply for a transfer to another SEVP-certified school, request a change of level to continue at the current school, or take steps to otherwise maintain legal status. However, choosing to delay the OPT application until that time runs the risk of not having the OPT approved in time (given the processing time of 3-4 months) and may result in a shorter than 12 month OPT period.

Travel while the OPT application is pending

Students are strongly advised not to travel outside the United States during the period between the completion of their degree program and the receipt of their EAD card. This is because, to regain entry into the United States, they need to have a valid I-20 and a valid EAD card. In addition, if their visa has expired, they need to have a valid I-20 and a valid EAD card to renew the visa. EAD cards are not sent to overseas addresses.

Unemployment Period in OPT

Each day the student is not employed in a qualifying job is counted toward the limit on unemployment time. However, time prior to the issuance of the EAD card does not count toward the time spent unemployed. The limit is 90 days for students on post-completion OPT, including those with a cap-gap extension, except that students with a STEM OPT extension are given an additional 30 days of unemployment time for a maximum of 120 days. Students on OPT are required to report to their university every time they start or end a job. (More on eligible jobs below).

The 90-day unemployment period, combined with the 60-day grace period, together mean that one can in principle start working on OPT as late as 150 days after graduation by choosing a late start date and using the full unemployment period at the start of OPT.

For students whose OPT application is approved after their indicated OPT start date, the period between their start date and the date of approval of OPT does not count toward the OPT unemployment period. Nonetheless, the period between OPT approval and receiving the card counts toward the unemployment period (in so far as it overlaps with the OPT period).

The allowance for unemployment under OPT has been vacated by the United States District Court for the District of Columbia, effective February 12, 2016.[1]

Grace period after completion of post-completion OPT

There is a grace period of 60 days after the completion of post-completion OPT. Note, however, that applications to extend OPT (using either the H-1B cap gap or the STEM extension, discussed later) need to be put in before the completion of post-completion OPT. If the student's OPT is over and the student does not have a pending OPT extension application (or the student's extended OPT is over) then the student is not allowed to work during the grace period.

Maps Optional Practical Training

Activities permitted under OPT

Jobs permitted (and required to count as employment)

Students on OPT must report their jobs to the international office at their university. Most international offices have an interface for students to report and update their job details online.

• Requirement of relation to program of study: OPT needs to be related to the student's program of study. Students do not need to get prior approval for their jobs from the government. However, the government may at any time request the student to furnish evidence that each of the jobs that he or she did while on OPT was related to his or her program of study. Since students can be asked to retroactively furnish evidence for jobs that they have already left while on OPT, it is recommended that students maintain documentation for each job of how the job relates to their program of study. There are two aspects of this: (i) the student cannot take up jobs unrelated to the program of study (even as additional jobs, over and above jobs related to the program of study), and (ii) the student must take jobs related to the program of study for the entire duration of OPT, excepting the 90-day unemployment period.
• Time required in order to not count toward the unemployment period: A student under OPT counts as "employed" under OPT if he or she is working at least 20 hours per week. According to some sources, students running their own businesses must work a minimum of 40 hours/week to qualify as employed under OPT.
• Self-employment or business creation: A student on OPT is allowed to use the OPT for self-employment or for starting his or her own business.
• Changing jobs: It is possible for a person on OPT to switch jobs while on OPT, without prior approval, so long as the new job satisfies the criteria for OPT (relation to program of study). The student must report the job change immediately to the international office at his or her university (there is a grace period of up to 10 days for reporting).
• Holding multiple jobs simultaneously: It is possible for a person on OPT to hold multiple jobs simultaneously, so long as each job satisfies the criterion of being related to the program of study, and the total time on the jobs is more than 20 hours per week.
• Regulations on the type of employer or payment: Apart from the criterion of being related to the program of study and the minimum duration of more than 20 hours per week, there are no OPT-specific regulations on the employer or the amount of pay. Standard labor and employment laws continue to apply. In particular, OPT can be used for jobs with for-profits or non-profits, and can also be used for unpaid internships.

Academic activities permitted

While the student is on pre-completion OPT, the student's academic activities are unrestricted, as the student is treated just like any other student not on OPT.

While students may be able to take classes under post-completion OPT (for instance, as "graduate-students-at-large" at some universities), they cannot enroll in full-time degree programs while on OPT. If the student wishes to enroll in a degree program, he/she must cancel his/her OPT in order to enroll.

Travel permitted

Students on pre-completion OPT may travel just as ordinary students on student visas. (They need to make sure they have a valid student visa and an I-20 with travel signatures at the time of re-entry).

A student who is currently on post-completion OPT may travel outside the United States. In order to return to the United States, the student needs to have the following:

• Valid visa: If the student has a student visa that is valid for the expected re-entry date, the student need not renew the visa. If, however, the student's student visa has expired, the student needs to renew his or her student visa (F-1 in most cases). As with all non-immigrant visa applications and renewals, the student needs to submit the authorization documents showing that he or she can stay in the United States (in this case, the I-20 and the EAD) and also prove non-immigrant intent.
• Valid I-20 with travel signature: At the time of re-entry into the United States, the student must show his or her I-20 with a travel signature that is less than 6 months old. This is unlike the case of students who are still in their degree programs, who need a travel signature that is less than a year old.
• Valid EAD card: At the time of re-entry into the United States, the student must also show his or her EAD and it should be valid.
• The student may be asked, either at the time of the visa renewal or at the time of re-entry, to demonstrate that he or she is currently employed, even though OPT does not require people to be employed for the entire OPT duration.

Taxation

The tax regime that applies to students under OPT depends on whether they qualify as resident aliens or nonresident aliens for tax purposes. The first five calendar years in student status (F-1) are exempt from the Substantial Presence Test used to determine eligibility for being a resident alien for tax purposes, after which approximately six months in the United States makes one a resident for tax purposes.

Students who are nonresident aliens for tax purposes while on OPT are exempt from paying Social Security and Medicare taxes.

This differs from the requirement for paying Social Security and Medicare taxes while engaged in on-campus employment in student status. For the latter, resident aliens in student status are also exempt from paying Social Security and Medicare taxes (per IRC Section 3121(b)(10)), whereas for the former, only nonresident aliens (based on the substantial presence test) are exempt from the taxes.

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Differences between working on OPT and H-1B

• Relation to program of study: The employment under OPT is restricted to employment that is related to the program of study. Employment under H-1B does not need to be related to any particular program of study.
• Tying to a specific employer: H-1B authorization applications are tied to specific employers. While it is possible to change employers while in H-1B status, this requires the filing of a new Form I-129 application with all the associated fees.
• Unemployment period: OPT allows for a total unemployment period of 90 days that can be distributed in any manner through the OPT period. H-1B authorized workers have no grace period if they lose their employment.
• Social Security and Medicare taxes: All H-1B workers and their employers are required to pay Social Security and Medicare taxes. However, those on OPT need to pay Social Security and Medicare taxes only if they are resident aliens (as determined by the Substantial Presence Test). Since the first five calendar years in F-1 status are exempt from the substantial presence test, students who graduate within that time frame may be exempt from paying these taxes for part or all of their OPT.
• Numerical cap: There are two types of H-1Bs, "capped" H-1Bs (all for-profits and many non-profits) and "cap-exempt" H-1Bs (only for jobs at certain research institutions that have acquired the necessary status with the government). Capped H-1Bs are subject to a numerical yearly cap, and, de facto, must apply at a specific time of the year (around April 1 for a H-1B authorization starting October 1; in principle, they can apply any time of the year, but since the cap applies for each fiscal year and the fiscal year starts October 1, almost all applications are made in the first few days of April). OPT applications may be submitted year-round and have no numerical caps.
• Burden of proof: H-1B applications need to meet a strong burden of proof, including showing that the job pays at the prevailing wage, and the H-1B application is preceded by a Labor Condition Application made to the Department of Labor demonstrating this. OPT employers, however, do not need to meet such a burden of proof. Although the individual under OPT does have another burden of proof--namely to show that the job is related to the field of study--this is the responsibility of the employee rather than the employer, and is not used as a basis for prior approval.
• Intent: OPT is part of the F status (student status) and requires non-immigrant intent. H-1B is recognized as being dual intent--a person on H-1B is therefore allowed to apply for a Green Card.
• Duration: The duration of OPT is between 12 months and 36 months. The duration of H-1B is 3 years (with an additional 3 years for renewing the H-1B, and additional 1-year or 3-year renewals in case of pending Green Card applications, with some caveats).
• Grace period for departure after completion without violating status: A person has 60 days to leave the United States after completion of the full OPT term, but only 10 days to leave the United States after completion of the full H-1B term.

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Ways of extending post-completion OPT

H-1B cap gap extension

The H-1B cap gap is a specific provision for extending the OPT with very limited applicability. Specifically it applies for people who, at the end date of their OPT, satisfy the following condition: they have a pending or approved Form I-129 petition for H-1B status in the "capped" category, but the start date for the H-1B status has not yet arrived. In particular, therefore, the H-1B cap gap de facto applies only for people whose OPT end date is between April 1 and October 1 (this is because in practice almost all cap-subject H-1B applications are made in the first week of April and choose a start date around October 1). Note also that the H-1B cap gap extension does not apply to workers who have applied for a H-1B visa from a cap-exempt employer (cap-exempt employers include research institutions that have acquired the relevant status; most universities and research centers have this status). Cap-exempt employers can apply year-round for H-1Bs.

The H-1B cap gap allows the worker to continue being employed under OPT until the worker is informed about his or her H-1B application status. If the application is approved, the worker must switch to H-1B status once the H-1B period begins (usually October 1). If the application is revoked or denied, the worker's work authorization is terminated immediately and the worker must stop working at once. The worker still has a 60-day grace period to leave the United States.

For students who avail of the H-1B cap gap, the total unemployment period is still 90 days (or 120 days if the cap-gap was applied for while the student was on the STEM extension).

If people apply for H-1Bs while on their original OPT (i.e., not extended using the H-1B cap gap extension), and are rejected from H-1B, they may continue on OPT until the end date indicated on their OPT. If their H-1B application is authorized, they may choose to switch to H-1B on the H-1B start date and have their OPT ended. They cannot simultaneously be on OPT and H-1B.

It is also possible to apply for and get a cap gap extension after one's OPT work authorization is over, during the 60-day grace period. However, in this case, one cannot continue to work. For instance, if one's OPT ends on March 15, and one applies for H-1B status on April 1 with a start date of October 1, one could apply for the cap gap extension in April and receive it, and thereby stay in the United States as a student till October 1, but without being able to either work or enroll in classes.

STEM extension

The STEM extension is a 17-month or 24-month extension of the post-completion OPT that is specific to workers who graduated in eligible STEM fields. On March 11, 2016, changes were announced to the rules governing the STEM extension, effective May 10, 2016. Both the old and the new rule are compared below.

The STEM extension can be combined with the cap gap in either direction: a student can apply for the STEM extension while on the cap gap (and choose not to transition to the H-1B status), and a student can apply for a cap gap extension while on the STEM extension.

The table below explains the rules surrounding repeat STEM use under the new and old rules:

Students already on a 17-month STEM extension as of May 10, 2016 that is not yet complete will be able to file for a 7-month extension with the USCIS on or after May 10, 2016. Those with an application pending as of May 10, 2016 will receive a Request For Evidence asking if they would like to extend to a 24-month period.

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Miscellanea

Multiple OPTs

A student is eligible for OPT for each level of study. Thus, for instance, a student can do OPT for his or her undergraduate degree (if done in the United States) and then again for his or her graduate degree (if done in the United States). A student can get an associate degree, do a year of OPT, then transfer and get a bachelor's degree, do a year of OPT, and so on, for master's degree's and Doctorates, as long as students are going "up the educational ladder". Foregoing OPT at the undergraduate level does not give students any extra OPT time at the graduate level (the only exception is the case of the STEM extension, which can only be used once in a person's lifetime).

A student who acquires two masters level degrees can use a total of 12 months of OPT across the two degrees. Thus, a student who, say, completes a masters program in social sciences but anticipates getting an MBA and possibly doing an OPT after that, should choose an OPT duration for after the first masters program that is short enough to give enough time for doing an OPT after the MBA.

Cancellation of OPT

It is possible for students to cancel their OPT, either because they switch to another role (e.g., switch to a full-time degree program) or leave the United States.

Leaving in case of using up the unemployment period

A student on OPT who uses up the 90-day unemployment period must leave immediately. There is no grace period.

The unemployment period has been vacated by the United States District Court for the District of Columbia effective February 12, 2016.

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Statistics

Number of receipts, approvals, denials, and revocations by Fiscal Year

Statistics below are for the United States fiscal year, that runs October to September. For instance, Fiscal Year 2008 starts on October 1, 2007 to September 30, 2008. Data is from a Government Accountability Office report.

Note that the counts here are of receipts, approvals, denials or revocations that happened in the Fiscal Year, regardless of when other activities surrounding that application occurred. For instance, if an application was approved in Fiscal Year 2009 and revoked in Fiscal Year 2010, the revocation would be counted in 2010 rather than 2009. Thus, the number of receipts for a given year need not equal the sum of the number of approvals and denials for that year.

IIE data on number of Optional Practical Training students (total and by country)

The Institute of International Education maintains data on the number of international students as part of its Open Doors project, supported from a grant by the Bureau of Educational and Cultural Affairs in the U.S. Department of State. The data is collected through surveys of over 3,000 accredited U.S. higher education institutions, and does not rely on any privileged access to government data; in particular institutions not included in the survey (such as high schools that issue student visas, and non-accredited institutions that are SEVP-certified) may be omitted from the statistics. Since the 2006-2007 academic year, these surveys have included data on usage of the Optional Practical Training program.

The data below summarizes both total OPT usage and the usage based on country of origin for the top countries of origin. More detailed data is available at the IIE website.

Since the Optional Practical Training program duration is a year for most people (though the STEM extension and cap gap allow for longer OPTs under some circumstances), the number of approvals in a given year should roughly match the number of students on Optional Practical Training. However, because of various mismatches such as that between the fiscal and academic year, and between the date of approval and the start date, and the fact that the Open Doors survey does not cover all SEVP-certified institutions, the numbers may not exactly match those from the GAO table.

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History

Introduction of the STEM extension

The STEM extension was announced in a memo by Department of Homeland Security Secretary Michael Chertoff on April 2, 2008, published in the Federal Register issue of Tuesday, April 8, 2008. The STEM extension appears to be directly attributable to Congressional testimony by Microsoft co-founder Bill Gates, March 12, 2008.

Immigration Reform Law Institute challenge in 2008

The OPT STEM extension announced in April 2008 was challenged in a lawsuit by the Immigration Reform Law Institute filed on May 29, 2008. On August 5, 2008, the lawsuit was rejected by a New Jersey district court judge.

Proposed changes as part of the Obama administration's November 20, 2014 immigration executive action

A November 20, 2014 memo by Department of Homeland Security Secretary Jeh Charles Johnson outlining proposed executive action on immigration endorsed by President Barack Obama included some suggested changes to the OPT program. The proposals were discussed and critiqued in National Law Review.

November 2014 challenge

In August 2015, a US federal court gave the green light to a lawsuit challenging the 17-month OPT STEM extension, filed by the Washington Alliance of Technology Workers and three IT workers who claimed that the OPT STEM extension had created unfair low-wage competition that had materially hurt them. On August 12, 2015, the United States District Court for the District of Columbia vacated the 2008 OPT Regulations but stayed the order until February 12, 2016, later extended to May 10, 2016, to allow DHS to provide a transition. The D.C. District explicitly rejected the reasoning of the New Jersey District and Third Circuit in dismissing the earlier 2008 challenge.

March 11, 2016: new OPT STEM extension rules effective May 10, 2016

The proposed rules suggested in the November 20, 2014 memo by DHS Secretary Jeh Johnson were finalized by the USCIS on March 11, 2016, to be effective May 10, 2016, just in time to address the November 2014 court challenge to the original STEM extension. While the USCIS changes for the most part expanded the STEM extension, they did add a requirement that the employer attest to non-displacement of US workers, thereby addressing the concerns raised in the lawsuit challenging the STEM extension.

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References

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External links

• Title 8 CFR: Title 8 Code of Federal Regulations.
• I-765: Form I-765
• April 2008 extension notice
• USCIS: OPT FAQs

Source of the article : Wikipedia