Recently question was asked by a poster if 90 day unemployment rule on OPT is only applicable to 27 month OPT. Answer is 'NO'. The total time spent without a qualifying job during post-completion OPT. Except as noted in the section on "what counts as time unemployed" (see below), 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.
As per updated document released by DHS, it made changes to post-completion optional practical training (OPT) that was effective immediately with publication. The IFR included explanation of the purpose for these changes and the reasons for its immediate implementation.
This update does the following:
- Provides current dates related to H-1B petitioning for 2010 (and removes information related to previous years.
- Amends the text to past tense, as applicable.
- Replaces the term “OPT STEM extension” with “17-month extension.” Classification of Instructional Program (CIP) codes for all science, technology, engineering and math (STEM) are the universe for those CIPs that are approved by DHS for the 17-month extension. However, DHS does not approve all STEM CIPS for the extension.
- Deletes reference to the public comment period for the IFR, which has closed (section 1.2). Adds text related to school filing of courses of study for CIPs, for STEM designation of CIPS and for DHS approval of STEM CIPS for the 17-month extension of OPT (section 1.3). Adds text on other resources available related to the IFR (section 1.4)
- Refines procedures for filing for OPT after the program end date (section 5.2)
- Deletes 10 day exceptions to the time that counts for unemployment during OPT at the EAD start date and between jobs. SEVP will need approval for such exceptions through another proposed rulemaking. (sections 7.1.6 and 7.1.7)
- Removed restriction that employment during the 17-month extension must be paid employment. SEVP will need approval for such a restriction through another proposed rulemaking. (sections 7.2.2 and 7.2.3)
- Deletes dates for wait-listing for this year. SEVP has been notified by U.S. Citizenship and Immigration Services (USCIS) that there will not be a waitlist utilized as a part of the FY 2011 H1B Cap filing process (section 9.1.1);
Unemployment time
The total time spent without a qualifying job during post-completion OPT. Except as noted in the section on what counts as time unemployed, 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.
LIMITS ON PERIODS OF UNEMPLOYMENT DURING A PERIOD OF AUTHORIZED OPT
Limits on periods of unemployment
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 accrue unemployment time and are subject to the 90-day limit on unemployment.
Students who receive a 17-month extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.
Do the limits on unemployment apply to any periods of unemployment prior to April 8, 2008?
No, the limits on unemployment do not apply retroactively.
Do the limits apply to students who had post-completion OPT approved before April 8, 2008?
For students who started post-completion OPT prior to April 8, 2008, unemployment time accrues only for time spent unemployed after April 8, 2008. Time unemployed prior to April 8, 2008, will not be counted.
Is a student who splits OPT between two degrees at the same education 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.
How many hours does a student need to work per week during post-completion OPT (including the 17-month extension) to be considered employed?
A student must work at least 20 hours per week in a qualifying position to be considered employed. If a student has a variable schedule, within a month, it should average out to at least 20 hours per week.
What counts as time unemployed?
Each day (including weekends) during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. OPT authorization begins on the employment start date shown on the student’s EAD.
[NEW AND/OR REVISED]
If a student does not receive the approved EAD, the missing EAD is not returned to the USCIS Service Center, and the student applies for a replacement EAD, when does the student begin accruing unemployment?
The “clock” for unemployment starts after issuance of the replacement EAD by USCIS.
[NEW AND/OR REVISED]
How does travel outside the United States impact the period of unemployment?
Time spent outside the United States during an approved period of post-completion OPT counts as unemployment against the 90/120-day limits, unless the student is either:
Employed during a period of leave authorized by an employer; or
Traveling as part of his or her employment.
Employment allowed while on OPT
What types of employment are allowed for regular pre- and post-completion OPT?
All OPT employment, including post-completion OPT, must be in a job that is related to the student’s degree program.
For students who are not on a 17-month extension, this employment may include:
· Multiple employers. A student may work for more than one employer, but all employment must be related to the student’s degree program and, for pre-completion OPT, can not exceed the allowed per week cumulative hours.
· Short-term multiple employers (performing artists). A student, such as a musician or other type of performing artist, may work for
· Multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration.
· Work for hire. This is also commonly referred to as 1099 employment, where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by DHS, the student must be prepared to provide evidence showing the duration of the contract period and the name and address of the contracting company.
· Self-employed business owner. A student on OPT may start a business and be self-employed. 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 or consulting firm. A student on post-completion OPT must be able to provide evidence showing he or she worked an average of at least 20 hours per week while employed by the agency.
· Paid employment. A student may work part time (at least 20 hours per week when on post-completion OPT) or full time.
· Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.
[NEW AND/OR REVISED]
What types of employment are allowed for students during a 17-month extension of OPT?
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. For a student who is on a 17-month extension, this employment may include
Multiple employers : A student may work for more than one employer, but all employment must be related to his or her degree program and all employers must be enrolled in E-Verify.
Work for hire. This is also commonly referred to as 1099 employment, where an individual performs a service based on a contractual relationship rather than an employment relationship. The company for whom the student is providing services must be registered with E-Verify. If requested by DHS, the student must be prepared to provide evidence showing the duration of the contract period and the name and address of the contracting company.
Self-employed business owner. A student on a 17-month extension can start a business and be self-employed. In this situation, the student must register his or her business with E-Verify and 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 his or her degree program.
Employment through an agency or consulting firm. A student on a 17-month extension may be employed by an employment agency or consulting firm. The employment agency or consulting firm must be registered with E-Verify, but the third parties contracting with the agency or firm (for which the student is providing services) need not be.
[NEW AND/OR REVISED]
Can a student work multiple jobs during a 17-month extension of OPT?
Yes, but all the employers must be enrolled in E-Verify.
How does a student show that employment is directly related to his or her degree program?
SEVP recommends that the student maintain evidence for each job documenting the position held, 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 recommends that the student obtain a signed letter from his or her hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.
Reporting employment and unemployment (other than students with a 17-month extension)
What should a student report to ensure that his or her status does not expire due to excessive unemployment time?
The student should report changes in employment to his or her DSO as soon as possible. SEVP recommends that the student report any change within 10 business days of the change to avoid situations where a DHS official may determine the student is out of status.
The following table suggests the best way to report employment or a change in employment.
| 19 SEVP Policy Guidance 1004-03 Update to Optional Practical Training Situation | Report |
| New job |
Name of the employer Start date of employment Mailing address for the employer
|
| Change to a new job |
Name of the previous employer Ending date of the employment with the previous employer Name of the employer Start date of employment Mailing address for the employer
|
| Multiple short-term gigs in one period with less than 10 days between gigs |
Report at the beginning of the first gig and indicate “Multiple short term gigs”
|
| Work for hire (start) |
Indicate “Self-employed work for hire” Indicate the start date of the contract
|
| Work for hire (ending more than 10 days between the end of one contract and the beginning of another contract or a new job) |
Indicate “Self-employed work for hire” Indicate you have no current contract Ending date of the last contract worked
|
| More than 10 days of unemployment |
Indicate “unemployed” Ending date of last job
|
| Self-employed business owner (start) |
Indicate “Self-employed business owner” Indicated date went into business
|
| Self-employed business owner (end) |
Indicate “Self-employed business owner” Indicate date business closed or student no longer worked for the business full time
|
Consequences of exceeding the period of unemployment
How should a DSO advise a student who is close to reaching the limit on authorized unemployment?
The DSO should advise the student of the options available upon reaching the limit and on the potential problems associated with violating status by exceeding the period of authorized unemployment. To avoid violating status, prior to reaching the limit on authorized unemployment the student should prepare to transfer to another SEVP-certified school, change education level, depart the United States, or take action to otherwise maintain status in the United States.
What is the effect on a student’s status if the student exceeds the period of unemployment?
A student who has exceeded the period of unemployment while on post-completion OPT has violated his or her status unless he or she has taken one of the following actions:
Applied to continue his or her education by a change of education level or transferring to another SEVP-certified school
Departed the United States Taken action to otherwise maintain legal status
Is a DSO responsible for determining if a student has exceeded the limit of unemployment time while on OPT?
No, a DSO is not responsible for calculating unemployment time or taking action in SEVIS based on unemployment time. If a student’s SEVIS record remains in Active status and the student has otherwise maintained F-1 status, the DSO should consider the student in status and act accordingly.
DHS maintains responsibility for determining whether a student has violated his or her status by exceeding the permissible limit on authorized unemployment.
How will DHS enforce this provision?
A student may be denied future immigration benefits that rely on the student’s valid F-1 status if DHS determines that the student exceeded the limitations on unemployment.
Additionally, ICE/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 that 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.
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