Hiring employees on OPT, CPT & H- 1 B

Strategies for Employers

Two (2) kinds of Practical Training o Optional Practical Training (OPT)

o Curricular Practical Training (CPT)

Must have been enrolled full-time for one full academic year (9 months).

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CPT must be an integral part of an established curriculum

Training that is required for all students

Training required for a particular course or curricular track

Cooperative education

It is possible to have multiple CPT employers

No application fee for CPT

No limit on the number of times or the length of time a student may engage in part-time or full-time CPT

24 months of part-time CPT does not count as the equivalent of 12 months of full-time CPT.


The use of 12 months (365 days) of full-time CPT affects eligibility for OPT at the same educational level

May engage in CPT only for the specific employer, location, and period approved

Must have an offer of employment from an employer offering work that qualifies as CPT

Must receive an authorization from ISS advisor before starting the employment

Must continue to maintain a full-course of study in F-1 status during the period of employment, but exceptions may exist.


A temporary employment for practical training directly related to the student’s major area of study

OPT can be authorized:

Pre-completion • During student’s annual vacation and when school is not session

• While school is in session as long as it does not exceed 20 hours per week

Post-completion • After completion of all course requirements for bachelor’s, master’s or

doctoral degree; and

• After completion of the course of study

Cannot file for a combination of pre-and-post completion OPT

All periods of pre-completion OPT are deducted from the available periods of post-completion OPT.


Under the prior rules, an F-1 student could be authorized to receive up to a total of 12 months of practical training either pre- and/or post- completion of studies

Under the new rule, certain students will be eligible to receive a 17-month STEM extension of post-completion OPT (29 months total)


Prior use of full-time CPT for 12 months or more eliminates eligibility for OPT

Must apply for EAD from USCIS (currently it takes about 3 months)

If doing pre-completion OPT or OPT based on coursework completion, student must maintain a full course of study during the period of employment (unless done during school breaks).


CPT

Requires a job offer

Requires enrollment in a special class in which on-the-job training is required and for which course credit is received during the quarter the employment takes place

CPT is authorized for a specific employer for work related to student’s field of studies

OPT

No job offer required

No special class enrolment required

allows work w/ ANY employer based on student’s field of studies


CPT

CPT may only be issued for work prior to graduation, and prior to completion of course units required for degree

OPT

Allows for employment both prior to and after graduation


An F-1 student may apply for post-completion OPT up to 90 days before the student’s program end date and up to 60 days after his or her program end date.

A student may file for the 17-month extension up to 120 days prior to the end of his or her post-completion OPT.

A student cannot have a requested start date that is more than 60 days past the student’s program end date.


Science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List may apply for a 17-month extension of OPT

STEM students must be employed with employers enrolled in E-Verify.

STEM extension is only once per lifetime

Employer must report to ISSO within 24 hours if employment is terminated or student changes job

Students cannot accrue unemployment beyond a certain period: however, employer is not bound to verify so long as E-verify approves


Includes the following courses of study:

• Computer Science Applications • Biological and Biomedical Sciences • Actuarial Science • Mathematics and Statistics • Engineering • Military Technologies • Engineering Technologies • Physical Sciences


Eligibility requirements for 17 month extension of OPT

The student must have a bachelor’s, master’s or doctorate degree included in the STEM Designated Degree Program List

The student must currently be in an approved post-completion OPT period based on a designated STEM degree

The student’s employer must be enrolled in E-Verify

The student must apply on time (i.e., before the current post-completion OPT expires).


E-Verify is an Internet-based system that compares information from an employee's Form I-9 to data from U.S Department of Homeland Security and Social Security Administration records to confirm employment eligibility.

participation in E-Verify is voluntary for most employers, while completion of Form I-9 is required of all employers.

E Verify verifies I-9

Free to use


Gives U.S. employers two chances to recruit these highly desirable 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.


Cap gap: Time between the period an F-1 student’s status ends and his or her H-1B status begins

Cap gap extension: A period in which an eligible F-1 student’s status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status

Cap gap OPT : A period of OPT that has been extended beyond the date on the F-1 student’s employment authorization document during an authorized cap gap extension.


What is the length of the cap gap extension? • For a student with active post-completion OPT, the cap gap extension

for both employment and F-1 status starts the date the student’s original OPT expires and ends September 30 unless the H-1B petition for the student is rejected, denied, or withdrawn. In that case, the employment authorization ends and the grace period begins.

• For a student whose post-completion OPT expired prior to the filing date of the H-1B petition, the cap gap extension starts at the end of his or her grace period and ends September 30 unless the H-1B petition for the student is rejected, denied, or withdrawn. However, the student will not have work authorization.


Minimum employment must be for 20 hours/week

Job must relate to the student’s degree program

For students who are not on a 17-month extension, this employment may include:

• Multiple employers

• Short-term multiple employers (performing artists)

• Work for hire (1099)

• Self-employed business owner

• Employment through an agency or consulting firm

• Paid employment or unpaid; subject to labor laws


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

Employment may include: • Multiple employers: All employers must be enrolled in E-Verify

• Work for hire

• Self-employed business owner

• Employment through an agency/consulting firm: The employment agency/consulting firm must be registered with E-Verify, third parties need not be.

• Students can volunteer(unpaid) but it does not count towards employment.


SCENARIO 1

Fact: EAD expires in May 1, 2011

Q: What if STEM extension is not filed/not available

A: H-1B must be filed before EAD expires

Situation: H-1B approved

Cap Gap will allow student to work until September 30, 2011; October 1, 2011 student will be a H-1B employee.


SCENARIO 2 Fact: EAD expires March 1, 2011 (H-1B cannot be filed until April 1, 2011) Q: What if STEM extension is available to student A: Student must file STEM extension prior to the expiration of EAD if he is to continue working for the employer Tip: With STEM, student can now work on EAD until July 31, 2012, following which cap gap will allow him to work until September 30, 2012 with the employer who files his H-1B prior to July 31, 2012 Q: What if STEM not available A: No cap gap on standard EAD period. Once H-1B is filed, student can remain in the US but cannot work. Student can work only w.e.f October 1, 2011 subject to H-1B being approved. Tip: Students should have the EAD period commence after 60 days from the end of program, not before. This may ensure that the EAD covers the period after April 1, 2011.


SCENARIO 3 Fact: EAD expires in May 1, 2011; STEM available, EAD can be extended until September 30, 2012 Note: Employer can file H-1B either in 2011 or in 2012 Q: What if Employer files H-1B prior to May 1, 2011; and Student does not file for STEM; and H-1B is approved: A: Cap gap allows student to work until Sept. 30, 2011, after which student will be on H-1B Q: Student does not file for STEM; and H-1B is denied A: Student will have to return within 60 days of H-1B denied. Tip: Student must file for STEM should H-1B be denied-See situation 4 Q: If Employer wants to file H-1B after April 1, 2012 (only possible if Student files for STEM); and H-1B is approved A: Student can be on H-1B w.e.f. October 1, 2012 Q: If Employer wants to file H-1B after April 1, 2012 (only possible if Student files for STEM); and H-1B is denied A: There is no cap gap issue here; student can continue to work on EAD until September 30, 2012, after which he must leave US. Tip: STEM does allow student to work for the period remaining on the EAD even though H-1B is denied.


SCENARIO 4

Facts: EAD expires in July 2011; STEM filed; H-1B filed

Q: What if H-1B is denied

A: Student can continue working on the STEM EAD until next year. Employer can again file H-1B for student (2012) quota. Student will start working on H-1B w.e.f October 1, 2012.

Tip: Student must have filed for STEM prior to H-1B denial.

Note: If H-1B is denied before student files for STEM, the student must leave the country within 60 days.

STEM benefit cannot be obtained once H-1B is denied.


OPT-Intern

No minimum wage

No other obligations associated with H-1B: LCA, attestations, PAF

Flexible job position: So long as it is related to the field of study

Employers can “spread” H-1B hiring over two fiscal years

Full time or Part Time: Need based

Costs of H-1B filing can be deferred


Cap gap is available so long as the H-1B petition is pending or approved. If denied, then student must return within 60 days

Cap gap cannot be extended beyond September 30 even if the H-1B petition has not been adjudicated by USCIS

To be eligible for STEM extension the student must currently be in an approved post-completion OPT period based on a designated STEM degree. Thus, for example, a student with an undergraduate degree in a designated STEM field, but currently in OPT based on a subsequent MBA degree, would not be eligible for STEM extension.

What happens if the OPT expires while the 17-month extension application is pending: o Students who timely filed the STEM extension will receive an extension of

employment authorization after their current employment authorization expires, but for no more than 180 days.


Thank You!

Law Office of Sweta Khandelwal

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Education

Hiring employees on OPT, CPT & H- 1 B