Introduction to Optional Practical Training

On April 23, 2010, the Immigration and Customs Enforcement (ICE) released a document titled “Policy Guidance For: Student and Exchange Visitor Program [(SEVP)] and Designated School Officials of SEVP-Certified Schools with F-1 Students Eligible for or Pursuing Post-Completion Optional Practical Training” (SEVP Policy Guidance) [PDF version]. The document provides official guidance for students and designated school officials (DSOs) with regard to optional practical training (OPT), STEM OPT extensions, and H1B cap-gap relief. This article will focus on OPT. To learn about H1B cap gap relief, please see our full article [see article].

In this article, we will use the SEVP Policy Guidance along with regulations to explore issues relating to pre- and post-completion OPT as well as certain issues regarding STEM OPT extensions. The guidance with regard to STEM OPT extensions is based upon a now-superseded regulatory scheme, which is no longer entirely applicable. To learn about the new rules for 24-month STEM OPT extensions, please see our full article [see article].

Please note that unless otherwise noted, “section” shall refer to the SEVP Policy Guidance.

Three Types of OPT

There are three types of OPT: pre-completion OPT, post-completion OPT, and STEM OPT extensions. The SEVP Policy Guidance provides an overview of each type of OPT. Under 8 C.F.R. 214.2(F), an F1 student lawfully enrolled on a full-time basis in a United States Citizenship and Immigration Services (USCIS)-approved college, university, conservatory, or seminary for one full academic year may apply for employment authorization to engage in OPT. A student may be authorized for up to 12 months of practical training (including Curricular Practical Training (CPT) and OPT) and may later seek a subsequent 12 months of practical training when he or she changes to a higher education level. Section 3.2 of the SEVP Policy Guidance explains that a student who engaged in one year or more of full-time CPT is not eligible for OPT for the same degree. A student may only request employment authorization for practical training in a position that is directly related to his or her major area of study. Under 8 C.F.R. 214.2(f)(11)(i), the student must obtain a recommendation for OPT from his or her DSO. If the DSO recommends the student for OPT on the student’s Form I-20, the student must then file for employment authorization with USCIS under 8 C.F.R. 214.2(f)(11)(i)(A). Under 8 C.F.R. 214.2(f)(10)(ii)(A), a student may not begin employment until his or her application for employment authorization has been approved.

1. Pre-completion OPT (section 3.2.1.) [see article section]

The SEVP Policy Guidance explains that pre-completion OPT is OPT that a student is authorized to engage in before his or her program end date. Students who have been approved for pre-completion OPT may work for up to 20 hours per week while school is in session. Students who are eligible to apply to register for the next term may also seek approval to work full time while school is not in session.

2. Post-completion OPT (section 3.2.2.) [see article section]

The SEVP policy guidance explains that a student may engage in post-completion OPT after his or her program’s end date. Under 8 C.F.R. 214.2(f)(10)(ii)(B), all post-completion OPT must be completed within a 14 month period after the student’s program end date (this does not count a STEM OPT extension). A student must be employed for at least 20 hours per week and is subject to limits on the accrual of unemployment time.

3. STEM OPT Extension (section 4.5) [see article section]

Students may apply for a 24-month STEM OPT extension of post-completion OPT. Please note that the referenced section of the SEVP Policy Guidance discusses the now-superseded regulations relating to 17-month STEM OPT extensions.

Pre-Completion OPT

The SEVP Policy Guidance contains provisions regarding pre-completion OPT. We will review the SEVP Policy Guidance along with the underlying regulations regarding pre-completion OPT.

Section 5.5 of the SEVP Policy Guidance explains that a student may file for pre-completion OPT up to 90 days before he or she completes a full academic year. If the student has already completed a full academic year, he or she may apply for pre-completion OPT up to 90 days in advance of the requested employment start date. This is in accord with regulations found in 8 C.F.R. 214.2(f)(11)(i)(B)(1). The application for pre-completion OPT employment authorization is filed on the Form I-765.

Section 5.7 of the SEVP Policy Guidance explains that students may not file simultaneously for combined pre-completion and post-completion OPT. This is because the regulatory provisions proscribe distinct application and employment maintenance requirements for pre-completion and post-completion OPT. Accordingly, before recommending a student for pre-completion OPT, the DSO must ensure that the proposed employment end-date for the pre-completion OPT is on or before the student’s academic program end date.

Section 6.4 explains that the student may not continue pre-completion OPT after his or her program end date. Section 6.6 elaborates that if a student who is approved for 12 months of pre-completion OPT completes his or her course of study early, he or she must stop working before the program end date and file a separate application for post-completion OPT. The student would be eligible to carry over unused pre-completion OPT to his or her post-completion OPT (provided the application for employment authorization for post-completion OPT is approved). Furthermore, the SEVP Policy Guidance explains that any time that the student spent working part time for pre-completion OPT would count for half of the actual time in carrying over to post-completion EAD (e.g., six months of part-time employment would be considered to take up three months of the twelve month allotment at the student’s education level). Section 6.10 states that OPT authorization ends on the transfer-release date for a student who requests a transfer to another SEVP-certified school or a change of education level at the same school. This rule is found in 8 C.F.R. 214.2(f)(10)(ii)(B).

Section 6.7 explains that a student in a graduate-level program who has only a thesis or equivalent remaining in order to complete his or her degree may apply for either pre- or post-completion OPT if he or she is otherwise eligible. A student who is granted 12 months of pre-completion OPT with a thesis or equivalent remaining will not be subject to the OPT unemployment provisions that apply to post-completion OPT. The student may engage in pre-completion OPT so long as he or she is still completing the thesis or dissertation. However, the student would not be eligible to seek a STEM OPT extension or a cap-gap OPT extension on the basis of pre-completion OPT.

Post-Completion OPT

The SEVP Policy Guidance contains provisions regarding post-completion OPT. We will review the SEVP Policy Guidance along with the underlying regulations regarding post-completion OPT.

Under 8 C.F.R. 214.2(f)(10)(ii)(A)(3), a student must have completed a course of study or all of the course requirements in a degree program for the degree (excluding thesis or equivalent) in order to be eligible for post-completion OPT. A student may continue to be enrolled in a school so long as he or she has completed a course of study or all of the requirements for a degree program.

Section 5.1 of the SEVP Policy Guidance states that an F1 student may apply for post-completion OPT up to 90 days before his or her program end date and up to 60 days after his or her program end date. The application for post-completion OPT, however, must be properly filed with the correct USCIS Service Center within 30 days after the student received a recommendation for post-completion OPT from his or her DSO. This guidance reflects regulations found in 8 C.F.R. 214.2(f)(11)(i)(B)(2). Section 5.3 of the SEVP Policy Guidance states that student should only ask for a recommendation from his or her OPT within 30 days of the date he or she expects the application for employment authorization to arrive at the appropriate USCIS service center.

Section 6.2 states that the requested end date of a student’s post-completion OPT may not be more than 12 months after the requested start date. However, the student may request less than 12 months if he or she has less than 12 months of OPT left at his or her current education level or if he or she wishes to retain a period of OPT for pre- or post-completion OPT for another degree at the same education level. Section 6.3 explains that if USCIS adjudicates the student’s Form I-765 after the student’s requested start date, the end date will be extended to reflect the later start date. If the student has less than 12 months of OPT remaining at his or her current education level, the end date that he or she may be granted will reflect that. The post-completion OPT end date may not be more than 14 months after the student’s program end date.

Section 6.7 explains that a student who has only a thesis or its equivalent remaining may be granted post-completion OPT while completing his or her thesis or dissertation. While a student is on post-completion OPT with a thesis or equivalent remaining, he or she may work full time, may apply for a STEM OPT extension, and would be subject to unemployment provisions. The student would also be eligible for H1B cap-gap relief. However, the student would be ineligible to extend his or her course of study. If the student cannot complete his or her thesis/dissertation during the 12 months of post-completion OPT, he or she should prepare to apply for a change of status [see article], change education level and/or transfer, or depart the United States prior to the expiration of his or her 60-day grace period for departure.

Section 6.9 advises students who are not sure whether they will complete their program requirements to defer applying for post-completion OPT until after completing the program. If a student applies for post-completion OPT prior to the program end-date and subsequently fails to complete the program, the student should consult with his or her DSO immediately. The student may withdraw the application if employment authorization has not been granted. If employment authorization has been granted, the DSO may extend the student’s program end date. The student would be able to work part-time while enrolled in classes (and full-time during breaks and vacations). However, because the student would have been approved for post-completion OPT, he or she would be subject to the 90-day limitation on unemployment.

Section 7.1.1 explains that students engaged in post-completion OPT are required to remain employed. A student may accrue up to 90 days of unemployment during a period of regular post-completion OPT. A student may accrue 150 days total of unemployment between post-completion OPT and a STEM OPT extension. Both of these periods include any cap-gap extensions. Section 7.1.4 explains that a student who splits his or her post-completion OPT between two degrees at the same education level will be permitted 90 days of unemployment for each post-completion OPT rather than only being permitted 90 days between both periods of post-completion OPT.

In order to be considered employed for purpose of post-completion OPT, section 7.1.5 states that a student must work at least 20 hours per week in a qualifying position. Section 7.1.6 explains that each day (including weekends) when the student does not have qualifying employment counts as a day of unemployment. Under section 7.1.8, time spent outside the United States will count as unemployment unless the student remains employed during a period of leave authorized by the employer or unless the student is traveling as part of his or her employment.

Section 7.3.1 advises students to advise their DSOs about changes in employment as soon as possible in order to avoid being found to have lost status due to excessive unemployment time. The following chart, reproduced from the SEVP Policy Guidance, lists the best ways to report employment or changes in employment:

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
Student decides to exit the
United States and complete his
or her F-1 status prior to the end
date of OPT		 Indicate “Completing OPT and exiting the United States”
Date of exit

Section 7.4.1 advises that if a student is approaching the 90-day unemployment limit, the students should consult with his or her DSO immediately. If a student exceeds the 90-day unemployment limit while on a period of post-completion OPT, he or she will be found to be out of status. A student in such a situation may be able to transfer to another SEVP-certified school, change education level, depart the United States, or otherwise take action to maintain a lawful status in the United States. The student may consult with an experienced immigration attorney for a full evaluation of the situation.

A student may be readmitted to the United States after a temporary absence abroad on a SEVIS I-20 with an EAD. However, the SEVIS I-20 must have been signed by the DSO within the previous 6 months. The student may only seek admission to attend the same school. Under 8 C.F.R. 214.2(f)(13)(ii), the student may present his or her EAD at a port of entry. The student must also present a valid F1 visa.

STEM OPT Extension

The information in the SEVP Policy Guidance is based upon the previous regulatory scheme regarding STEM OPT extensions. To learn about the current rules, please see our full article [see article].

One key change in the new STEM rules with regard to issues discussed in this article is that, under the current 8 C.F.R. 214(f)(10)(ii)(C)(3), the degree upon which a student relies for a STEM OPT extension need not be the same degree that he or she relied on for regular post-completion OPT. Therefore, provided that all the requirements are met, a student may split his or her regular post-completion OPT between two degrees at the same level and then apply for the STEM OPT extension on the basis of a qualifying STEM degree. Please see our section on this issue to learn more [see article section].

Qualifying Employment for Pre- and Post-Completion OPT (non-STEM Extension)

Section 7.2.1 lists qualifying employment for pre- and post-completion OPT (non-STEM extension):

Work for hire. A student performing work for hire performs services based on a contractual relationship rather than based on an employment relationship. 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 possesses a proper business license and that the work is related to his or her degree program.
Employment through an agency or consulting firm. The student must be able to show that he or she worked an average of at least 20 hours per week.
Paid employment. A student may work part time (at least 20 hours per week on post-completion OPT) or full time.
Unpaid employment. The student may work as a volunteer or unpaid intern so long as such work does not violate labor laws. The student must be able to provide evidence from the employer to verify that he or she worked at least 20 hours per week.

Section 7.2.4 advises that students maintain the following evidence to show that each position is directly related to their degree programs:

The position held;
Proof of duration of the position;
The job title;
Contact information for the student’s supervisor or manager; and
A description of the work performed.

Students may also obtain a signed letter from the employer stating how the student’s degree is related to the work performed by the student.

Under 8 C.F.R. 214.2(f)(12)(i), a student engaged in a period of OPT is required to report any change of name, address, or interruption of employment to his or her DSO.

Qualifying Employment for STEM OPT Extension

The SEVP Policy Guidance lists the types of employment that were permitted under the old STEM OPT rules for 17-month extensions in section 7.2.2.

First, it is important to note that 81 FR 13079 requires that an employer of a student on a STEM OPT extension have a bona fide employer-employee relationship with the student.

The policy guidance stated that students on STEM OPT extensions may work for multiple employers. However, under the new rules, each employer must individually meet the training plan requirements and the student must work for a STEM OPT employer for at least 20 hours per week. In 81 FR 13079, the Department of Homeland Security (DHS) stated that it anticipated that “it will be very unusual, though not expressly prohibited, for students to work with more than two employers at the same time during the STEM OPT extension period, given that each employer must fully comply with the requirements of this rule and employ the student for no less than 20 hours per week.”

The SEVP Policy Guidance states that self-employment is permitted. 81 FR 13079 allows for students to be employed by start-up companies, but it prohibits a student from providing an employer attestation on his or her own behalf. In such an arrangement, it must be demonstrated that the student’s compensation is commensurate with the compensation provided to other similarly situated U.S. workers.

The SEVP Policy Guidance took the position that labor for hire and work through consulting agencies could constitute permissible employment for a STEM OPT extension. However, due to the requirement that the employer and student have a bona fide employer-employee relationship, such employment is now not likely to satisfy the requirements for a STEM OPT extension.

Volunteer or unpaid positions may not serve as the basis of a STEM OPT extension.

To learn about the new rules for STEM OPT employment, please see our material on the subject [see article section].

Conclusion: Optional Practical Training

OPT provides students on F1 status with valuable opportunities to gain work experience in the field of their degrees. Students who are considering OPT should consult with their DSOs. Additionally, students should also consult with an experienced immigration attorney for guidance on how OPT may affect future immigration prospects. This is especially important if the student intends to seek a STEM OPT extension or eventually apply for H1B status. A student who faces a potential lapse of status while on a period of post-completion OPT should consult with an experienced immigration attorney immediately for a full assessment of his or her options.

Resources and Materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 884-87, Print. Treatises & Primers.