Optional Practical Training – What You Need to Know to Hire an F-1 Student with OPT
As our world becomes increasingly more globalized, individuals with exceptional talents are finding their way to US on F-1 visas in search of educational opportunities. One of the most common ways in which an individual, as well as prospective employers, are able to make the most out of their educational journey while in the United States is for the F-1 student to participate in Optional Practical Training or OPT for short. However, the process for applying for OPT and hiring an F-1 student with OPT is not always clear. This article details the basics concerning what OPT is as well as breaks down the process of what a student will need to do to apply for OPT as well as what the employer will need to do in hiring a student on F-1 Status with OPT.
WHAT IS OPT?
Optional Practical Training (“OPT”) is a type of temporary employment at a position that is directly related to the F-1 student’s major. F-1 students may not work during their first year of college, university, or seminary, but, following this period, students become eligible to apply for up to 12 months of OPT employment authorization that may occur before they complete their studies and/or after they complete their studies. A student does not have to be on F-1 status during the entirety of their first year. Any amount of time on another non-immigrant status that the student may have had during that one year period may also be applied towards the one year enrollment qualification.
If a student is authorized for pre-completion OPT, they may work only work on a part-time basis — about 20 hours— during the school year. If the school year is not in session, the F-1 student may work on a full time basis.
If a student is authorized for post-completion OPT, they may work on either a part time or full time basis. However, if they participated in any period of OPT before the completion of their studies; this amount will be subtracted from their post completion eligibility.
APPLYING FOR OPT
For a student to apply for OPT, they must first make a request with the student’s designated school official (“DSO”) to recommend OPT. Following this, if the recommendation is granted, the DSO will make the recommendation by endorsing the student’s Form I-120, Certification of Eligibility for Nonimmigrant Student Status, and by entering the recommendation into the student’s Student and Exchange Visitor Information System (“SEVIS”) record.
Depending on when a student is applying for OPT, whether before or after the completion of their studies, the time frame during which they may apply will vary:
- If a student is applying before the completion of their studies: they must apply after the DSO enters their recommendation into their SEVIS record and they may apply up to 90 days before the end of their full academic year so long as they do not start OPT before the completion of their first full academic year.
- If a student is applying after the completion of their studies: they must apply within thirty days of the DSO entering their recommendation into their SEVIS record and may apply up to 90 days before the completion of their degree but no later than 60 days after their degree is completed.
In addition to receiving a recommendation for the DSO, the student must also properly file an I-765, Application for Employment which will grant them their Employment Authorization Document (EAD). The EAD establishes the student’s identity and employment authorization for the purposes of filling out a Form I-9 for the student.
It should be noted that, in addition to the above presented timelines, a student may also not begin their OPT until their I-765 is approved and they have received the EAD.
HIRING A F-1 STUDENT WITH OPT
If you have an F-1 student that you wish to hire for a position, much like any other potential employee, you will need to file a Form I-9 on behalf of the student. As an employer, you have three days from the time that the employee begins their employment with your organization to file the I-9. There are three sections in total of the I-9 that will need to be completed — Section One is filled out by the F-1 student and Sections Two and Three are filled out by you as the employer.
Section One of the I-9 form deals primarily with identifying information of the F-1 student such as their name, address, email, birthday, etc. The information asked for does not vary between an American citizen and an F-1 visa student in the first portion of this section. However, where it does vary, is in the designation selection portion. When the F-1 Student completes Section 1, the student must enter the date that their EAD card expires in the Authorized to Work Until field in Section 1, next to what is marked as designation number 4 — An Alien Authorized to Work. Furthermore, in completing this portion, the F-1 student needs to present one of three document numbers:
- Alien Registration Number/ USCIS Number or
- Form I-94 Admission Number or
- Foreign Passport Number
Any one of the three document numbers will work for the satisfaction of this section.
Section Two of the I-9 form focuses on the employee’s authorization to work in the country. In order to show one’s authorization to work in the country, USCIS has compiled a list of acceptable documents that they will accept that can be found on the USCIS website. Furthermore, the list of acceptable documents is broken down into three lists— A, B, and C — which further separates the documents into documents that establishes both identity and employment authorization, documents that only establish identity, and documents that only establish employment authorization. If a Document from List A is presented, no other documents are necessary. However, if a no document from list A is presented, an employer must provide at least one document from both Lists B and C to meet verification requirements.
For F-1 OPT Student purposes in completing Section 2 for this student, an OPT student’s EAD card falls under List A’s acceptable documents. Thus, you should enter the student’s EAD Card Number as well as the date that the card expires under the column labeled as “List A”.
Section Three of the I-9 form focuses on the re-verification process for an employee who is either: being rehired; their employment authorization is ending; or if there has been any material change to their name or identity since the original filing of the I-9. This reverification is never required for US citizens nor is it required when US passports, US passport Cards, Green Cards, or List B Documents expire. For anyone on an expiring immigration status, employment status, or employment authorization document, they should file the necessary application well in advance of their expiration date; however, an employee’s employment authorization must be re-verified no later than the expiration date. You may not continue to employ a party who does not have proof of current employment authorization. When the student’s EAD expires, you must re-verify the student’s employment authorization in Section 3. This is done in a similar way to process involved in Section 2 by providing a current EAD card number and expiration date.
While this is a general overview of the process that is involved in hiring an F-1 student with OPT, there are many potential issues that you may run into as you attempt to onboard your employee. If you have any questions regarding this process or are in need of guidance in how to best comply with USCIS regulations, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.