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Strategies for Employers

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Two (2) kinds of Practical Training
o Optional Practical Training (OPT)
o Curricular Practical Training (CPT)
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Must have been enrolled full-time for one full academic year
(9 months).
Law Office of Sweta Khandelwal
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3.
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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.
Law Office of Sweta Khandelwal
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4.
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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.
Law Office of Sweta Khandelwal
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5.
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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
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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.
Law Office of Sweta Khandelwal
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6.
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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
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Under the new rule, certain students will be eligible to receive
a 17-month STEM extension of post-completion OPT (29
months total)
Law Office of Sweta Khandelwal
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7.
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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).
Law Office of Sweta Khandelwal
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8.
CPT
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Requires a job offer
Requires enrollment in a
special class in which on-thejob 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
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OPT
No job offer required
No special class enrolment
required
allows work w/ ANY
employer based on
student’s field of studies
Law Office of Sweta Khandelwal
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9.
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CPT
CPT may only be issued for
work prior to graduation,
and prior to completion of
course units required for
degree
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OPT
Allows for employment
both prior to and after
graduation
Law Office of Sweta Khandelwal
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10.
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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.
Law Office of Sweta Khandelwal
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11.
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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 Everify approves
Law Office of Sweta Khandelwal
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12.
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Includes the following courses of study:
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Computer Science Applications
Biological and Biomedical Sciences
Actuarial Science
Mathematics and Statistics
Engineering
Military Technologies
Engineering Technologies
Physical Sciences
Law Office of Sweta Khandelwal
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13.
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 postcompletion 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 postcompletion OPT expires).
Law Office of Sweta Khandelwal
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14.
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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
Law Office of Sweta Khandelwal
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15.
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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.
Law Office of Sweta Khandelwal
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16.
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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.
Law Office of Sweta Khandelwal
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17.
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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.
Law Office of Sweta Khandelwal
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18.
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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
Law Office of Sweta Khandelwal
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19.
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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.
Law Office of Sweta Khandelwal
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20.
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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.
Law Office of Sweta Khandelwal
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21.
SCENARIO 2
Fact:
EAD expires March 1, 2011 (H-1B cannot be filed until April 1, 2011)
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Q:
A:
Tip:
Q:
A:
Tip:
What if STEM extension is available to student
Student must file STEM extension prior to the expiration of EAD if he
is to continue working for the employer
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
What if STEM not available
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.
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.
Law Office of Sweta Khandelwal
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22.
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
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Q:
A:
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Tip:
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Q:
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Tip:
What if Employer files H-1B prior to May 1, 2011; and
Student does not file for STEM; and
H-1B is approved:
Cap gap allows student to work until Sept. 30, 2011, after which student will be on H-1B
Student does not file for STEM; and
H-1B is denied
Student will have to return within 60 days of H-1B denied.
Student must file for STEM should H-1B be denied-See situation 4
If Employer wants to file H-1B after April 1, 2012 (only possible if Student files for STEM); and
H-1B is approved
Student can be on H-1B w.e.f. October 1, 2012
If Employer wants to file H-1B after April 1, 2012 (only possible if Student files for STEM); and
H-1B is denied
There is no cap gap issue here; student can continue to work on EAD until September 30, 2012, after which he
must leave US.
STEM does allow student to work for the period remaining on the EAD even though H-1B is denied.
Law Office of Sweta Khandelwal
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23.
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.
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Law Office of Sweta Khandelwal
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24.
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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
Law Office of Sweta Khandelwal
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25.
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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.
Law Office of Sweta Khandelwal
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26.
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Thank You!
Law Office of Sweta Khandelwal