Optional Practical Training

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 at most one year on a student visa towards getting practical training to complement their field of studies. F-1 students are usually permitted a total of 12 months of practical training.

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.^[1][2] 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 in one of the following approved majors listed on the USCIS website.

This new interim final rule provides a permanent solution to the H-1B "cap-gap", when an academic foreign student's (F-1) status and work authorization expire during the current fiscal year before the student can start approved H-1B employment during the next fiscal year beginning on October 1. Previous cap-gap provisions extended only the stay but not the employment authorization.

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.

Types of OPT and other similar options

For the purposes of OPT, "part-time" work refers to work that is at most 20 hours/week. The term "full-time" could be used either in the sense of "more than part-time" (i.e., more than 20 hours/week) or in the sense of 40 hours/week or more.

Pre-completion and post-completion OPT

There are two types of OPT:^[3][4]

• Pre-completion OPT: This is a type of OPT where people currently pursuing degree programs acquire work authorization to do work related to their field of study. The work may be part-time during academic quarters and full-time during vacations.
• Post-completion OPT: This is a type of OPT for people who have completed their degree requirements, and requires working at least 20 hours/week to count as OPT employment (more later). Ph.D. candidates can apply for post-completion OPT if they are ABD (all but dissertation) and are not simultaneously enrolled as students.

Curricular Practical Training (CPT)

Curricular Practical Training is somewhat similar to pre-completion OPT in that it can be engaged in by students while enrolled in their degree programs, and is part-time during the term and could be full-time during vacations. There are two main differences between CPT and pre-completion OPT:^[5][6]

• Optional versus Curricular: Pre-completion OPT needs to be related to the field of study, but is not required by the field of study. CPT, however, is supposed to be required as part of the degree requirement. Degree-based CPT is tied to the degree but not to a specific course. Course-based CPT is tied to a specific course, and can be taken only by students enrolled in that course.
• Specifying the employer: For pre-completion OPT, it is not necessary to specify the employer during the application. However, for CPT, the employer is specified at the time of application and the employment offer letter is part of the application.
• Time limit: Pre-completion OPT has a time limit of 12 months whereas there is no limit on the number of months for CPT.
• Effect on (post-completion) OPT time: Pre-completion OPT counts toward the 12 month OPT limit (thus cutting into the length of possible time that can be spent on post-completion OPT). CPT does not count toward the 12 month OPT limit. However, if a student does 12 or more months of CPT, he or she becomes ineligible for OPT.^[6]

Academic Training (AT)

Academic Training is the analogue of OPT for students on a J-1 visa status. Note that a student cannot simultaneously be eligible for OPT and AT: OPT is for F-1 (and M-1) students whereas AT is for J-1 students.

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, note that applications are not accepted more than 90 days before the program end date).

Note that 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.

Choice of start and end date: more details

The following are the constraints on choice of OPT start and end date:^[3][4]

• The start date 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). Note, however, that if 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 (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:^[3][4]

• 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.

Note that 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. It is therefore advisable to begin the OPT application process as soon as one has fewer than 90 days to graduate.

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.^[3]

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).

Note that 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).^[3]

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.

Activities permitted under OPT

Jobs permitted (and required to count as employment)

Note that 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.^[3][4] 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.^[3] Note that 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.^[3] According to some sources,^[4] 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.^[3][4][7]
• 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).^[3][4]
• 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.^[8]
• 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, of course, continue to apply. In particular, OPT can be used for jobs with for-profits or non-profits, and it 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.^[9]

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:^[3][4]

• 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. On the other hand, students who are resident aliens for tax purposes while on OPT are required to pay Social Security and Medicare taxes.^[10]

Note that the requirement for paying Social Security and Medicare taxes for OPT employers differs subtly 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.^[11]

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. On the other hand, employment under H-1B need not 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 is considerably more difficult than changing jobs while on OPT.
• 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 29 months. The duration of H-1B is 3 years (with an additional 3 years for renewing the H-1B, and additional 1-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.

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 application for a H-1B visa in the "capped" category. 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 H-1B applications are made in the first week of April and choose a start date around October 1).^[3] 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 (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.

Note that for students who avail of the H-1B cap gap, the total unemployment period is still 90 days.

Note that 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.

STEM extension

The STEM extension is a 17-month extension of the post-completion OPT that is specific to workers who graduated in eligible STEM fields. The following criteria need to be fulfilled for the STEM extension:^[12]

• The degree program for which the student is doing OPT must be in a STEM field.
• The current or prospective employer must be specified as part of the application, and proof of either a job or a job offer must be included.
• The employer must be enrolled in e-verify at the time of application.
• The STEM extension can be used only once in the student's lifetime (unlike ordinary OPT, which can be used once for undergraduate work and once for graduate work).
• The application may be submitted at most 120 days prior to the end date of the OPT. It follow a similar process as the usual OPT application, but with the forms somewhat different.
• The student may change jobs while on the STEM extension, but each employer must be enrolled in e-verify. As such, the same restrictions and freedoms apply as for the ordinary post-completion OPT, with the additional restriction that all employers involved must be enrolled in e-verify.
• The total unemployment period across the entire 29 months of OPT must be at most 120 days.
• If the student applied for the STEM extension before the OPT 12-month period expired, and was employed by the listed e-verify employer at the time of expiration, the student may continue working for that employer for up to 180 days while the application is pending.

The STEM extension can be combined with the cap gap.^[13]

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.^[1] The STEM extension appears to be directly attributable to Congressional testimony by Microsoft co-founder Bill Gates, March 12, 2008.^{[14][15][16][17]} Upon its announcement, it was met with criticism from people concerned about high unemployment and wage stagnation in the technology sector for US citizens.^[18][19]

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 Associates degree, do a year of OPT, then transfer and get a Bachelors 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" Forgoing 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.^[3]

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. ^[3]

Proposed changes

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.^[20][14] The proposals were discussed and critiqued in National Law Review.^[21][22]

Legal challenges

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.^[23][24] On August 5, 2008, the lawsuit was rejected by a New Jersey district court judge.^[25][26][27]

November 2014 challenge

On November 24, 2014, 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.^[28][29][30]

References

1. ↑ 1.0 1.1 "Federal Register, Volume 73, Number 68 (April 8, 2008)". April 2, 2008. Retrieved January 19, 2015. 
2. ↑ "Questions and Answers: Extension of Optional Practical Training Program for Qualified Students". USCIS. 2012-04-25. 
3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 3.13 "OPT (Optional Practical Training)". University of Chicago. Retrieved 2013-09-10. 
4. ↑ 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 "F-1 Optional Practical Training". University of California, Berkeley. Retrieved 2013-09-10. 
5. ↑ "Curricular Practical Training". University of Chicago. 2013-09-10. 
6. ↑ 6.0 6.1 "Practical Training". Immigration and Customs Enforcement. Retrieved 2013-09-10. 
7. ↑ "Is there any legal way for international students on F-1 visas to incorporate and run their own startup while maintaining the F-1 visa status?". Quora. 2013-09-10. 
8. ↑ "Post-Completion OPT". Ohio State University. Retrieved 2013-09-10. 
9. ↑ "Taking Classes on OPT". University of California, Berkeley. 2013-09-10. 
10. ↑ "Foreign Student Liability for Social Security and Medicare Taxes". Internal Revenue Service. Retrieved 2013-09-10. 
11. ↑ "Social Security & Withholding: Must You Pay Social Security and Medicare Tax?". Retrieved 2013-09-10. 
12. ↑ "OPT STEM Extension". University of Chicago. Retrieved 2013-09-10. 
13. ↑ "Questions and Answers: Extension of Optional Practical Training Program for Qualified Students". United States Citizenship and Immigration Services. Retrieved December 24, 2014. 
14. ↑ 14.0 14.1 Naik, Vipul (January 19, 2015). "High-skilled hacks: the case of Optional Practical Training". Open Borders: The Case. Retrieved January 19, 2015. 
15. ↑ Chiappari, Angelo J.; Paparelli. "A Rare Carrot for Employers: F-1 Optional Practical Training Extended". Retrieved December 24, 2014. 
16. ↑ "Bill Gates written transcript from today's congressional testimony". Network World. March 12, 2008. Retrieved December 24, 2014. 
17. ↑ "Bill Gates Urges Congress to Foster Innovation & Immigration (video)". March 12, 2008. Retrieved December 24, 2014. 
18. ↑ "DHS CIS Circumvents Congress - Extends F-1 OPT". The Economic Populist. April 12, 2008. Retrieved January 19, 2015. 
19. ↑ Sanchez, Rob. "The Search for Internships Just Got Tougher". Californians for Population Stabilization. Retrieved January 19, 2015. 
20. ↑ "Policies Supporting U.S. High-Skilled Businesses and Workers". Department of Homeland Security. November 20, 2014. Retrieved January 19, 2015. 
21. ↑ Cohen, Susan J. (November 20, 2014). "Immigration Developments for Highly Skilled Workers: Changes the Business Community Can Expect as a Result of President Obama’s Executive Action on Immigration Reform". National Law Review. Retrieved January 19, 2015. 
22. ↑ Cohen, Susan J.; Ramos, Cassie M. (December 3, 2014). "President Obama’s Executive Immigration Reform: Shining a Spotlight on Reforming Optional Practical Training “OPT”". National Law Review. Retrieved January 19, 2015. 
23. ↑ "OPT extension rule challenged in court". ImmiTips. Retrieved January 19, 2015. 
24. ↑ Sukumar, Raghuram (July 17, 2008). "Federal Law Suit Challenging 29 Months OPT. Can it be Cancelled?". Retrieved January 19, 2015. 
25. ↑ New Jersey District Court (August 5, 2008). "Order and Opinion". Retrieved January 19, 2015. 
26. ↑ "OPT 17-month Extension Court Challenge Fails". August 17, 2008. Retrieved January 19, 2015. 
27. ↑ Thibodeau, Patrick (August 7, 2008). "Judge rejects student visa injunction sought by H-1B opponents. Tech workers don't have standing to fight Bush administration visa move". Computer World. Retrieved January 19, 2015. 
28. ↑ "Washington Alliance of Technology Workers vs United States Department of Homeland Security". United States District Court for the District of Columbia. Retrieved January 19, 2015. 
29. ↑ Thibodeau, Patrick (November 24, 2014). "Court OKs IT worker lawsuit over student visa work program". Computer World. Retrieved January 19, 2015. 
30. ↑ Ward, Kenric (December 3, 2014). "Court ruling challenges Obama immigration action". Human Events. Retrieved January 19, 2015. 

External links

• Title 8 CFR: Title 8 Code of Federal Regulations.
• I-765: Form I-765
• April 2008 extension notice
• USCIS: OPT FAQ's
• F-1 OPT Jobs for Students