FAQ on OPT and F1 Status for Students under H1B Cap-Gap

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?
A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
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Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?
A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?
A7. That is correct. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?
A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?
A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

• The student finds employment appropriate to his or her OPT
• The period of OPT is unexpired; and
• The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?
A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Last updated:04/01/2011

Source - USCIS

Durbin-Grassley's Letter to DHS Secretary to terminate 17-month OPT extension program for STEM students

Senator Grassley and Senator Durbin's letter to DHS Secretary, Janet Napolitano requesting restoring integrity of H1-B Program and reconsidering terminating 17-month OPT extension program for STEM students.

H1B 'Cap Exempt' Visa as an Option?

Most of the international students after graduation would focus their attention to find a job in corporate world. But it is always difficult to find an employer who will be ready to sponsor your H1B visa. If you are lucky, you may find an employer who is willing to sponsor your work visa, but could not do it because quota is not available at that time or if quota is open, is worried that he may have to wait until start of fiscal year in October before you could begin working for him. What are other options in such case? Well in this case, you can opt for working for organizations that are exempted from H1B visa regular cap quota.

What is H1B ‘Cap Exempt’ Visa?

The "cap exempt" provision of the H1B visa program allows certain US companies and organizations to employ an unlimited number of H1B workers and apply for H1B's at any time of year.

Cap exempt H1B's are available for ALL types of H1B jobs and positions.

This is a great way to find sponsorship jobs and apply for H1B visas all year round. This way you can get your foot in the door and get your first H1B.Once you have an H1B you can then transfer it to a new employer (from cap exempt to cap subjected quota is little tricky). Cap-exempt is not quota limited or restricted the same way as the regular H1B quota. This way you can file for H1B's and start work in the USA at any time of year.

Who can sponsor H1-B ‘Cap Exempt’ visas?

The USCIS states that petitions (applications) for new H1B employment are exempt from the cap if the applicant will work at the defined institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H1B categories regardless of H1B visa number availability.

Petitions filed on behalf of current H1B workers do not count towards the congressionally mandated H1B cap. Accordingly, this rule does not affect USCIS processing of petitions filed to:

• Extend the amount of time a current H1B worker may remain in the United States
• Change the terms of employment for current H1B workers;
• Allow current H1B workers to change from one cap-subject position to a different cap-subject position with a different employer
• Allow current H1B workers to work concurrently in a second H1B position.
  

What are advantages of H1B ‘Cap Exempt’ visas?

Unlike the Regular H1B visa , ‘Cap Exempt’ visas

• No annual numerical limit
• No set filing dates
• No set employment start dates

What types of H1B Jobs are available within non-profit Organizations ?

Non profits organizations are varied and in their business nature and markets - Non profits have all types of business departments (IT, finance, marketing, sales etc etc - and All types and levels of jobs are typically available.

DHS Updated F.A.Q on 90–day unemployment rule for OPT students

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.

Document on Tax Exemption for OPT Students and Students on F1B visa

In response to question asked by few posters on document or proof stating that OPT students are not required to pay Social Security Taxes and Medicare tax, please see document excerpt and link to the document below. You can share it with your employer. Please note even if you are on OPT, your non-immigrant status is F1B.

As per IRS site these are the following excerpt

Social Security and Medicare Taxes:

If you work as an employee in the United States, you must pay social security and Medicare taxes in most cases. Your payments of these taxes contribute to your coverage under the U.S. social security system. Social security coverage provides retirement benefits, survivors and disability benefits, and medical insurance (Medicare) benefits to individuals who meet certain eligibility requirements.

In most cases, the first $106,800 of taxable wages received in 2009 for services performed in the United States is subject to social security tax. All taxable wages are subject to Medicare tax. Your employer deducts these taxes from each wage payment. Your employer must deduct these taxes even if you do not expect to qualify for social security or Medicare benefits. You can claim a credit for excess social security tax on your income tax return if you have more than one employer and the amount deducted from your combined wages for 2009 is more than $6,621.60. Use the appropriate worksheet in chapter 3 of Publication 505, Tax Withholding and Estimated Tax, to figure your credit.

If any one employer deducted more than $6,621.60, you cannot claim a credit for that amount. Ask your employer to refund the excess. If your employer does not refund the excess, you can file a claim for refund using Form 843

In general, U.S. social security and Medicare taxes apply to payments of wages for services performed as an employee in the United States, regardless of the citizenship or residence of either the employee or the employer. In limited situations, these taxes apply to wages for services performed outside the United States. Your employer should be able to tell you if social security and Medicare taxes apply to your wages. You cannot make voluntary payments if no taxes are due.
Students and Exchange Visitors :

Generally, services performed by you as a nonresident alien temporarily in the United States as a nonimmigrant under subparagraph (F), (J), (M), or (Q) of section 101(a)(15) of the Immigration and Nationality Act are not covered under the social security program if the services are performed to carry out the purpose for which you were admitted to the United States. This means that there will be no withholding of social security or Medicare taxes from the pay you receive for these services. These types of services are very limited, and generally include only on-campus work, practical training, and economic hardship employment.

Social security and Medicare taxes will be withheld from your pay for these services if you are considered a resident alien as discussed in chapter 1, even though your nonimmigrant classification (“F,” “J,” “M,” or “Q”) remains the same.

Services performed by a spouse or minor child of nonimmigrant aliens with the classification of “F-2,” “J-2,” “M-2,” and “Q-3” are covered under social security.

Nonresident Alien Student :

If you are a nonresident alien temporarily admitted to the United States as a student, you generally are not permitted to work for a wage or salary or to engage in business while you are in the United States. In some cases, a student admitted to the United States in “F-1,” “M-1,” or “J-1” status is granted permission to work. Social security and Medicare taxes are not withheld from pay for the work unless the student is considered a resident alien.

Please point your employers to this link from IRS and see section "Social Security and Medical Taxes". Remember this hold only if you are considered non-resident alien for tax purposes. Social security and Medicare taxes will be withheld from your pay for these services if you are considered a resident alien as discussed in chapter 1, even though your nonimmigrant classification (“F,” “J,” “M,” or “Q”) remains the same.

Definition of Resident Alien :

Resident aliens generally are taxed on their worldwide income, similar to U.S. citizens.To be classified as a resident alien, the individual must meet one of two tests:

Green Card

A non-resident alien is a lawful permanent resident of the U.S. at any time if they have been given the privilege, according to the immigration laws, of residing permanently as an immigrant. This status usually exists if the Bureau of Citizenship and Immigration Services has issued a green card.

Substantial Presence in US

A non-resident alien is classified as a resident alien for tax purposes if they were physically present in the U.S. for 31 days during the current year and 183 days during a three-year period that includes the current year and the two years immediately before that.

Schools Approved by SEVIS that qualifies for 12 month OPT

International Students looking to pursue higher education in United States are always concern about Universities which are eligible by SEVIS/SEVP to issue I-20, and eventually recognized and qualified by USCIS for 12 month (29 month for STEM students) On Practical Training (OPT) program after graduation.

Here is the list of the updated SEVIS/SEVP approved schools

H1B Approved and Currently on OPT : Can I transfer H1B ?

Students on OPT, who have been recently approved for H1B always have the question "I am currently on OPT and my H1B application was approved. Can I change my Job and transfer H1B to new employer?"

Answer to "Can I Change my Job? " will be Yes, you can change job on OPT whenever you want. There is no obligation to work for any employer. Employment in US is at will, and one can change job anytime he/she wants.

Tricky part will be "Can I transfer my H1B to new employer?". Individual can transfer their H1B only after October 1st, which is official start date for your H1B. To benefit from "portability" - being able to transfer the H-1B from one employer to another - the H-1B must be in effect, and thus the transfer cannot occur until the October effective date. Although the petition can be submitted before that time. But case will be approved only after October 1st.

Students on OPT: Tips for Finding Job After Graduation

If you are on OPT after graduating from an American university and currently actively looking for a job, you may find this post helpful. In recent years after talking to many friends and colleagues overtime, I have found that it is not easy to get an entry-level job. Especially if you are an international student, life gets more tough. With new 90-day unemployment rule, finding job is a challenge. One would have to apply for many jobs daily, even to get a single call from a Recruiter. I have found that many individuals will randomly apply for a job which they come across online job-board like Monster, dice, Hotjobs or Careerbuilder. Some applicants would not even bother to send a cover letter with their applications.

Here are few steps that are recommended if you are applying for a job.

1. Always prepare a cover letter defining your qualification, skills (technical, research or teaching) and brief summary on how you obtained them during different employment you held. Do not make an unique cover letter. Make sure every cover letter outlines work that will complement the job requirement.
2. Resumes and application forms give employers written evidence of your qualifications and skills. The goal of these documents is to prove—as clearly and directly as possible—how your qualifications match the job’s requirements. Do this by highlighting the experience, accomplishments, education, and skills that most closely fit the job you want.
3. Screen through the job requirement and see if recruiter or hiring manager has mentioned a contact email address or a phone number. Your resume will reach right people soon if you will email them than applying online.
4. Spend some time on working on Steps 1 to 3 and once you are convinced that you have a good case then apply for the job. Apply few jobs but make sure that Resume and content that you submit is qualitative and not quantitative.
5. Most of the people get jobs through networking. Try joining Linkedin, Alumni network at your school or other networking sites. Join different groups at these networking site. Talk to your Professors. Go to different networking events in your city.
6. Most of the students will end up getting their first job locally. Screen through craigslist or local newspaper. Check your university's career website regularly. See when your university and neighboring universities are holding a career fair.
7. Lastly, start searching for job well in advance from your graduation. If possible, try getting an Internship or Co-op during summer. You are most likely to end up with a full-time job with the same company.

If you will follow aforementioned steps, you are more likely to get a call from Recruiter. Other issue that international student face even after following above steps is company will not consider them, even being perfect match. The reason being company will not file H1-B for individuals future employment. To overcome this, usually I will not apply jobs with companies that do not have history of filing H1Bs, unless I am close to the best match they are looking for. To search for the companies that hire H1B holders in your field, please visit this website. Most of the companies that do not have history of filing H1Bs would immediately turn you down since they do not want to go through the hassle of filing H1B in April or would not like hiring lawyers for your case. In addition, it also cost them $4000 above your base pay. There are few small companies who have never even heard of H1B work visa.

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

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.

Please see

Information on Tax Exemptions for OPT Students

Most of the students who are on F-visa or on Optional Practical Training (OPT) having a legitimate job should remember that they are exempted from U.S. Social Security (FICA) and Medicare taxes. These students should inform their employer about this to avoid inappropriate deduction from their pay.

OPT students, who recently applied for H1B FY 2010 should also make sure that their employer must start deducting U.S Social Security and Medicare taxes from 1st October 2009 (start date for their H1B visa). Failure to do so could lead to heavy tax penalties during annual tax return.

Below is some information on certain classes of alien employees are exempt from U.S. social security and Medicare taxes

Resident aliens, in general, have the same liability for Social Security/Medicare Taxes that U.S. Citizens have. (Please see Resident Aliens definition for Tax purposes)

Non-resident aliens, in general, are also liable for Social Security/Medicare Taxes on wages paid to them for services performed by them in the United States, with certain exceptions based on their non-immigrant status. The following classes of non-immigrants and non-resident aliens are exempt from U.S. Social Security and Medicare taxes:

• A-visas: Employees of foreign governments are exempt on salaries paid to them in their official capacities as foreign government employees.
• The exemption does not automatically apply to servants of employees of such foreign governments.
• The exemption does not apply to spouses and children of A non-immigrants who are employed in the United States by anyone other than a foreign government.

• D-visas: Crew members of a ship or aircraft may be exempt if the vessel is a foreign vessel and the employer is a foreign employer, or if the services are performed outside of the United States
• Crew members of an American vessel or aircraft who perform services within the United States ARE subject to Social Security and Medicare taxes.
• Crew members of an American vessel or aircraft who perform services outside the United States ARE subject to Social Security and Medicare taxes if:
• the employee signed on the vessel or aircraft in the United States; or
• the employee signed on the vessel or vessel outside the United States but the vessel or aircraft touches a U.S. port while he is employed thereon.

• F-visas, J-visas, M-visas, Q-visas: Non-resident Alien students, scholars, professors, teachers, trainees, researchers, physicians, au pairs, summer camp workers, and other aliens temporarily present in the United States in F-1,J-1,M-1, or Q-1/Q-2 non-immigrant status are exempt on wages paid to them for services performed within the United States as long as such services are allowed by USCIS for these non-immigrant statuses, and such services are performed to carry out the purposes for which such visas were issued to them.

• Exempt Employment includes:
• On-campus student employment up to 20 hours a week (40 hrs during summer vacations)
• Off-campus student employment allowed by USCIS.
• Practical Training student employment on or off campus.
• Employment as professor, teacher or researcher.
• Employment as a physician, au pair, or summer camp worker

• Limitations on exemption:
• The exemption does not apply to spouses and children in F-2, J-2, M-2, or Q-3 non-immigrant status.
• The exemption does not apply to employment not allowed by USCIS or to employment not closely connected to the purpose for which the visa was issued.
• The exemption does not apply to F-1, J-1, M-1, or Q-1/Q-2 non-immigrants who change to an immigration status which is not exempt or to a special protected status.
• The exemption does not apply to F-1, J-1, M-1, or Q-1/Q-2 non-immigrants who become resident aliens.

• G-visas: Employees of international organizations are exempt on wages paid to them for services performed within the United States by employees of such organizations.
• The exemption does not automatically apply to servants of employees of such international organizations.
• The exemption does not apply to spouses and children of G non-immigrants who are employed in the United States by anyone other than an international organization.

• H-visas: Certain non-immigrants in H-2 and H-2A status are exempt as follows:
• An H-2 non-immigrant who is a resident of the Philippines and who performs services in Guam;
• An H-2A non-immigrant admitted into United States temporarily to do agricultural labor.