Tuesday, April 21, 2009

F.A.Q on 90–day unemployment rule for students on 12-month OPT


Tuesday, April 21, 2009 | , , , , ,

Last year USCIS released 90-day unemployment rule for students on OPT. This rule specifies an aggregate maximum allowed period of unemployment of 90 days for students on 12-month OPT. With economy struggling and no jobs available, it is important that students graduating with 12-month OPT be aware of this rule. To maintain one's status throughout, please see F.A.Q on what types of employment are allowed on 12-month OPT to overcome 90-day unemployment rule.

With less free flowing money in hand, companies would be more than willing to hire individuals with unpaid internships. Try to look for such jobs on career website. This can be a stepping stone for a full-time job. Many hospitals, research organizations and non-profit organizations are always looking for volunteers to join their team. Once they have openings, you could be the first one to be considered for full-time jobs. Many Software Engineers and Architects could also work for a firm as an independent contractors on 1099. Entrepreneurs could start their own business (obviously if they have some funds). In addition, see tips on finding job after graduation.

F.A.Qs

What are the limits on periods of unemployment?

  • Students on post-completion OPT may have up to 90 days of unemployment.
  • Students who have OPT extended due to the cap gap provisions continue to be subject to the 90-day limitation on unemployment.
  • Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.

What type of employment is allowed on 12-month OPT?

All OPT employment must be directly related to the student's major field of study and commensurate with the degree level. The following types of paid and unpaid experiences are considered valid OPT activities according to the U.S. Department of Homeland Security and should be reported to the ISSO.

Paid employment. Students may work part time (at least 20 hours per week when on post-completion OPT) or full-time.


Multiple employers. Students may work for more than ne employer, but all employment must be related to the student's degree program and for pre-completion OPT cannot exceed the allowed per week cumulative hours.

Short-term multiple employers (performing artists). Students, such as musicians and other performing artists may work for multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration. If requested by DHS, students must be prepared to provide evidence showing a list of all gigs.

Work for hire. This is also commonly referred to as 1099 independent contractors where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by DHS, students must be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company.

Self-employed business owner. Students on OPT may start a business and be self-employed. In this situation, the student must work full time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student's degree program.

Employment through an agency. Students on post-completion OPT must be able to provide evidence showing they worked an average of at least 20 hours per week while employed by the agency.

Unpaid employment. Students may serve as volunteers, unpaid interns, researchers, community service workers, etc, where this does not violate any labor laws. These students must be able to provide evidence from the organization that the student performed services at least 20 hours per week during the period of post-completion OPT.

Is a student who splits OPT between two degrees at the same level limited to a total of 90 days of unemployment?

  • No, the student is not limited to a total of 90 days of unemployment in this case. For each new period of post-completion OPT, the student will have the full 90-day period of unemployment.

What counts as time unemployed?

  • Each day during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job will not be included in the calculation for time spent unemployed.

How does travel outside the United States impact the period of unemployment?

  • If the student whose approved period of OPT has started travels outside of the United States while unemployed, the time spent outside the United States will count as unemployment against the 90/120-day limits.
  • If a student travels while employed (either during a period of leave authorized by an employer or as part of their employment), the time spent outside the United States will not count as unemployment.

How do students show employment is directly related to their degree program?

  • SEVP recommends that students maintain evidence that they held a particular position, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager, and a description of the work.
  • If it is not clear from the job description that the work is related to the student’s degree, SEVP highly recommends that the student obtain a signed letter from the employer’s hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.

Does 60-days grace period exist even after the end of 90 day unemployment period?

  • Yes, like any other non-immigrant visa, you will have 60 days grace period to file for change of status

Please post comments for further questions and I will add them to the list.


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8 comments:

Anonymous said...

Are you sure that the 60-days grace period exists even after the end of 90 day unemployment period ? I thought DHS announced that one would be out of status in that situation.

CM said...

This is gray area since nothing has been mentioned about 60-day grace period in DHS documents. Student can apply for change of status after 90 day unemployment, but whether thecase will be approved or not, is at IO's discretion. It is advisable that the student should apply for COS atleast week before he/she exceeds 90 day unemployment.

See excerpt from one of the university's ISSO website
" Unemployment is described as time spent without a qualifying job during OPT and each day that the student is not employed is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job will not be included in the calculation for time spent unemployed.

If a student is not able to secure a paid job or internship and is coming to the 90 days of unemployment limit he/she may work as a volunteer or unpaid intern, where this does not violate any labor laws. The work must be at least 20 hours per week for students on post-completion OPT and students must be able to provide evidence from the employer that they worked at least 20 hours per week during the period of unpaid employment.

If a student exceeds the 90 day period of unemployment then he/she has technically violated his or her status. Therefore the student is required to either:

1) Apply to continue his or her education by a change of level or transfer to another SEVP-certified school through reinstatement procedures,
2) Take action to otherwise maintain legal status by applying for another immigration status, or
3) Depart the United States.

Although schools are not required to alert the Department of Homeland Security (DHS) if a student has exceeded the 90 days of unemployment, the student should be aware that he/she may be denied future immigration benefits that rely on valid F-1 status if DHS determines that the student exceeded the limitations on unemployment. Additionally, SEVP may examine SEVIS data for an individual, a selected group, or all students on post-completion OPT and terminate a student’s record if it fails to show the student maintained the proper period of employment. In such cases, the student will be given an opportunity to show that he or she complied with all OPT requirements, including maintaining employment."

daniel said...

The popular comment layout is common, so it is easily recognized when scanning to post a comment. If the comment section is in a different format, then I am going to spend more time trying to decipher what everything means.

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Anonymous said...

I asked my attorney and she said that the 90-day unemployment rule applicable to only 27 month OPT and not the 12 month. i.e., students either getting the 27 month OPT first time or extend it from the 12 month period. In case of 12 month, I heard that the students get the full benefit of 12 months to land in a job or internship. Assume that if this is the new law, when it is implemented?

Anonymous said...

To,
Anonymous (September 28, 2010)...
Can you please discuss more about the 90 day unemployment period in case of 12 month OPT, because u came up with a different point distinguishing between 12 month and 27 month OPT because I have being unemployed for almost 9 months on my 12 month OPT, and now I have got an I-20 from a different school for a different program, I did not transfer my SEVIS yet from my current school, so is it possible that I might be out of valid F-1 status..

Anonymous said...

What if you get a job after your 90th day is over? Can you still work accept the job offer?

CM said...

Answer is 'NO'. The total time spent without a qualifying job during post-completion OPT. Each day that the student is not employed in a qualifying job is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT, including those with a cap gap extension, except that students with an approved 17-month extension are given an additional 30 days of unemployment time for a maximum of 120 days. Please see "DHS Updated F.A.Q on 90–day unemployment rule for OPT students"

CM said...

Answer is 'NO'. The total time spent without a qualifying job during post-completion OPT. Each day that the student is not employed in a qualifying job is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT, including those with a cap gap extension, except that students with an approved 17-month extension are given an additional 30 days of unemployment time for a maximum of 120 days. Please see "DHS Updated F.A.Q on 90–day unemployment rule for OPT students"

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