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.

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H1B FY 2010 : Cap Count Update 13th April 2009

Today, USCIS updated the count on H1B cap for FY 2010. According to their recent update they have received approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS mentioned in their latest update that they will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the cap limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

It is been almost 13 days since USCIS last announced that they have received 42,000 regular case applications, and approximately enough applications to reach advanced degree cap exemption. With recent update, it is clear that USCIS received approximately 1000 applications in last few days, which appears too less compared to number of applications USCIS received in similar situation during last few years.

Kudos to investigation led by ICE in collaboration with U.S. Citizenship and Immigration Services' Fraud Detection and National Security Division (FDNS); U.S. Department of Labor's (DOL) Office of Inspector General; U.S. Postal Inspection Service (USPIS); U.S. Department of State; Social Security Administration's Office of the Inspector General, and U.S. Attorney's Office for the Southern District of Iowa, that lead to arrest of 11 individuals under H1B visa fraud. This unquestionably alarmed many companies, that use to file scrupulous H1B applications with no legitimate client requirements. It is needless to say that with DOL imposing heavy penalties on companies that do not pay their employees on bench, we will see fewer of such redundant applications this year.

We should also not forget starting this year, there are stringent laws imposed on companies that received bailout money through Trouble Asset Relief Program (TARP) which confine them from hiring H1Bs. To add to this, struggling economy is playing a huge role in restricting many companies from hiring new skilled workers. Keeping all these aspect in mind, we should see H1B cap for fiscal year 2010 be available for sometime. At last there is some good news for students graduating with advanced degree in May.

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.
  
  

INFORMATION FOR STUDENTS AND EXCHANGE VISITORS (F-l, M-l & J-l VISA CATEGORIES) PURSUING EMPLOYMENT IN THE UNITED STATES

The U.S. Department of Homeland Security and the Department of State, along with the Social Security Administration, have coordinated several actions in order to ensure that eligible students and exchange visitors can be given Social Security numbers. Some of the actions to facilitate Social Security number issuance involve the cooperation of the student or exchange visitor. If eligible to work in the United States, students/exchange visitors should:

1. Report to their school or to their exchange visitor program as soon as possible after arrival at a U .S. port of entry. This should be done prior to applying for Social Security numbers.

2. Designated School Officials (DSOs) will then follow-up on the arrival of their students by registering them in the Student and Exchange Visitor Information System (SEVIS).

Responsible Officers (ROs) will then follow-up on the arrival of their exchange visitors by validating them in SEVIS.

3. If there are no other conflicts with the requirements of the Social Security Administration and the status of the student or exchange visitor in SEVIS, current students/exchange visitors should receive Social Security numbers.

If the SSA cannot assign an SSN, it will mail a notice of explanation to the applicant. The notice instructs studentS to contact their DSO and request that their SEVIS information be reviewed to ensure that it is accurate. Exchange visitors will likewise contact their ROs and requesthat their SEVIS information be reviewed to ensure that it is accurate. Note that corrections made in SEVIS are accessible to the SSA within 48 hours. Once SEVIS is updated, students/exchange visitors may reapply for SSNs after 48 hours elapse.

If a student or exchange visitor is not assigned an SSN and the DSO or RO believes he/she is authorized for employment, DSOs/ROs should first verify that SEVIS reflects the current status of the student or exchange visitor (e.g. active, inactive, etc.) IfDSOs/ROs are unable to determine the cause of the difficulty, they can contact the Student and Exchange Visitor Program (SEVP) at (703) 603-3400
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