Immigration @ Work

Employing F-1 Non-Immigrant Students After Graduation

by Marylou V. Fabbo

Employing students is a great way for employers to be able to assess their capabilities and fit within the organization.  If the student impresses the employer, an offer for post-graduation employment may follow.  On the other hand, the student’s employment may give an organization a head’s up that the particular individual won’t meet its expectations.  If the employee is an “F-1” non-immigrant, employers should be aware of the limitations on post-graduation employment as well as the steps that should be taken to reduce the risk of an interruption in employment.

Curricular Practical Training (CPT)

An “F-1” non-immigrant student is a foreign student who is pursuing academic studies and or language training programs.  Designated School Officials (DSO) at certified schools issue Form I-20, Certificate of Eligibility for non-immigrant F-1 students.

Students in F-1 status may participate in curricular practical training (CPT) that is an integral part of the curriculum of the student’s degree program.  CPT allows students to accept paid alternative work/study, internship, cooperative education, or any other type of required internship or practicum that sponsoring employers offer through cooperative agreements with schools.  CPT must be completed before graduation.

Optional Practical Training (OPT)

OPT is temporary employment that is directly related to an F-1 student’s major. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion OPT) and/or after completing their academic studies (post-completion OPT).  F-1 students can apply for 12 months of OPT at each level of education, and, while school is in session, can work a maximum of 20 hours per week.  F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees and are in a regular OPT can apply for a 24-month STEM OPT extension.

 Cap-Gap Extensions

The deadline for the H-1B lottery is April 2, 2018 for fiscal year 2019, which begins October 1, 2018.  Since most graduations are in May or June, what is a non-immigrant student to do after graduation and before October 1st?  That depends.  If the student is in F-1 status when an employer files for the H-1B petition with an October 1 start date, but the student is not currently participating in OPT, the student will receive a cap-gap extension of their F-1 status, but will not be authorized to work until USCIS approves the H-1B petition and the H-1B status begins on October 1.  However, if a student is F-1 status when you file an H-1B petition with an October 1 start date and is then participating in post-completion OPT, they will receive an automatic cap-gap extension of both their F-1 student status and their authorized period of post-completion OPT. If the H-1B petition is selected and remains pending or is approved, the student will remain authorized to work as an F-1 student with OPT through September 30.  Additionally, during the Cap-Gap period, students may file for a 24-month STEM extension.

Employers should speak with students about potential post-graduation employment sooner rather than later.  Students can speak to their (DSO) about their circumstances and to find out what option is best for them, and Skoler Abbott attorneys are available to assist employers in transitioning non-immigrant students to H-1B status.

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