USCIS issues updated policy memorandum

In late 2023, the USCIS updated its policy manual on practical training for F1 and M1 students. The policy manual, which can be found at USCIS.gov/policy-manual/volume-2-part-f-chapter-5 is the source material for this article. The purpose of this article is to summarize some of the salient features of the policy manual, but if the reader wishes more detail, please consult the policy manual. Remember, this is only a summary.

In general, F1 students may engage in three types of practical training. These are:

Curricular practical training, also known as CPT;

Optional practical training, also known as OPT, which may be pre-completion or post-completion;

STEM optional practical training, for those graduating with a degree in science, technology, engineering, or mathematics (which is a 2-year addition for post-completion OPT).

Practical training may only be authorized for an F1 student who is graduating from or studying at USICE-SEVP certified educational institutions, and who has already been enrolled for more than one full-time academic year. “Study abroad” programs may count toward this one full year academic enrollment requirement.

Note that students who are engaged in English language programs are not eligible for practical training of any sort.

Finally, M1 students can avail of practical training only after they have completed their full course of study. There is no pre-completion or curricular practical training for M1 students.

F1 student curricular practical training

There is no need to file an application for curricular practical training with the USCIS. The designated officer at the school can approve a student’s curricular practical training. The curricular practical training must be part of the program of study of the F1 student.

Students-please note: if you receive one year or more of full-time curricular practical training, you become ineligible for any post-completion optional practical training.

F1 student optional practical training

F1 students may receive either or both of pre-completion optional practical training or post-completion optional practical training.

Additionally, post-completion optional practical training may be extended by up to two years for students graduating from a STEM program.

Some of the salient points of both pre-and post-completion practical training are as follows:

Pre-completion practical training is allowed for up to 20 hours per week while school is in session, and when school is not in session, it can exceed 20 hours per week.

A student may be authorized for 12 months of optional practical training, and in addition, can obtain another 12 months of optional practical training if the student changes to a higher educational level.

Recapturing unused practical training

If a student has not used any practical training at all, and changes to a lower educational level, where optional practical training maybe available, the student may use that initial 12 months of training at the lower educational level.

Also interestingly, overtime and periods of unemployment are not considered in the calculation of the amount of OPT that is used. Therefore, a student who might have worked the equivalent of seven months of full-time OPT (including overtime), but was granted only six months of OPT time, and completed all his or her work, including the overtime within that six months is considered to have maintained the conditions of his or her optional practical training. Alternatively, if during the six-months of approved OPT, the student is unemployed for two months, the student may not “recapture” that unused two months of employment. In other words, once OPT is issued, it is gone, whether the student worked or not.

Application process: Unlike curricular practical training (CPT), both pre-and post-completion OPT require that the student file form I-765 with the USCIS and obtain an employment authorization document from the USCIS prior to starting employment. Students should also note – any time used for pre-completion practical training reduces the amount of post-completion practical training that the USCIS may authorize. For example, if the USCIS has approved six months of pre-completion OPT, that six months will be deducted from the 12 months of post-completion OPT that the student is eligible for. Therefore, the student will receive a maximum of only six months of post-completion OPT.

When a student must apply for post-completion OPT

A student who is in the last semester of the program must be cognizant of the deadlines for filing form I-765 with the USCIS for an employment card. Specifically, the student must apply within a narrow window of 150 days. This “window” starts 90 days before the program end date, and ends 60 days after the program end date. If the student misses these deadlines to file their form I-765, their application for an EAD will be denied.

STEM OPT extension – student obligations:

An F1 student who obtains a STEM OPT extension must fulfill several requirements. These requirements include a number of self reporting requirements as well.

To be eligible for a STEM OPT extension, an F1 student must, among other things:

Have already been granted their first year of OPT and be in a valid period of post completion OPT;
Have earned a bachelors, masters, or doctoral degree from an USICE-SEVP certified school;
Be employed for a minimum of 20 hours per week for each qualifying STEM OPT employer (which opens the door to part time employment under STEM OPT as well as multiple employers);
Must complete an individualized “training plan for STEM OPT students” on Form I-983, which identifies in detail the training plan for the F1 student on STEM OPT.

Given the glacial time that the USCIS is taking for I-765 applications, students who have already timely and properly filed Form I-765 for their STEM OPT extension may continue working until the date of the decision on the Form I-765, or for up to 180 days after their current post-completion OPT expires, whichever is earlier. Therefore, the student in essence receives an extension of 180 days.

What are some of the student’s other OPT reporting and employment requirements?

An F1 student with an approved STEM OPT extension must also fulfill the following reporting requirements:

Report any change of address, employment or loss of employment within 10 days of the change;
Report to the student’s designated school official any change of name, address, employer name, address, or loss of employment within 10 days of the change;
Complete a validation report every six months confirming that the employment and information given in the initial application etc. has not changed.

Such reports must be provided to the designated school official within 10 business days of each reporting date. Therefore, for a 24 month OPT extension, there will be at least four reporting requirements. Even if there is no change of information, the student still needs to provide a report, attesting that the previously provided information is still truthful and accurate.

A student on STEM OPT must also provide a self-evaluation of their progress toward the training goals described in Form I-983. Pursuant to the policy manual, the USCIS requires at least two such evaluations: the first will be due 12 months after the starting date of the STEM OPT, and then, a concluding evaluation. The student must submit these reports to the designated school official no later than 10 days after the conclusion of the reporting period.

Thus, the reader can clearly see that there are numerous requirements and restrictions on the F1 STEM OPT program. It is important that all of these requirements be met in order that the student not jeopardize his or her potential for a change of status to another non-immigrant classification (such as H1B) or an immigrant visa in the future.

The question is sometimes asked – how much total OPT time can a student get?

Under the USCIS’s regulations and interpretations as set forth in the policy manual, a student may:

Obtain no more than two (2) one year OPT periods of 12 months each, one for each separate educational programs in the student’s lifetime; and, if applicable,
Obtain a maximum of two STEM OPT periods of two years each for USICE-SEVP approved STEM OPT graduation from bachelors, masters, or doctoral programs.

Thus, the maximum OPT that a student may obtain over the course of his or her academic career will be a total of six years, if that student completes TWO STEM programs.

STEM OPT – employer obligations:

Employers have to fulfill certain requirements before they can qualifier to hire a student for a STEM OPT extension. These include:

Be enrolled in E-Verify;
Have good standing with E-Verify;
Have a valid employer identification number issued by the IRS;
Report material changes to the F1 student’s employment;
Implement a formal training program for the F1 student;
Include an employment opportunity equivalent to that offered to similarly situated US workers in terms of duties, hours, and compensation;
Report the F1 student’s termination of employment or departure to the designated school official within five business days.

Additionally, the employer must also:

Maintain a bona fide employer employee relationship with the F1 student;
Attest that the employer has sufficient resources and personnel available to train the student appropriately;
That the student will not replace a full or part-time temporary or permanent US worker;
That the training opportunity will assist the F1 students educational goals.

Can a third party (example, a temp agency) hire an F-1 student?

The question is often asked whether a third-party (a staffing or temporary agency or consulting firm) may employ F1 students under the STEM OPT program. The answer, per the policy manual, is quite clear. Such employment is permissible as long as the employer provides the necessary practical training and experience to the F1 student and maintains a bona fide employer employee relationship with the F1 student.

Self-employment for F-1 students:

In other articles on this blog, I have discussed self-employment for F1 students under the OPT program.

Interestingly, the policy manual extends what I had written about earlier:

In the past, I had written that, at least in the first year, an F1 student could be self-employed and thereby fulfill the necessity of remaining employed in the USA and not losing his or her OPT. However, the USCIS had not clarified whether an F1 student be self-employed during that additional 2-year period of STEM OPT.

In this policy manual revision, the USCIS has clarified that issue. The USCIS states:

F1 students who seek STEM OPT extensions may be employed by new startup businesses so long as all regulatory requirements are met, including that the employer complies with the requirements set forth above.(The key here is bona fide “employment”).

“Alternative compensation may also be allowed during a STEM OPT extension, as long as the F1 student can show that they are a bona fide employee, and that the compensation, including any ownership interest in the employer entity (such as stock options) is commensurate with the compensation provided to others similarly situated US workers.”

This is a very interesting and exciting development indeed -stay tuned for a further article on this topic.

The H1B cap-gap extension – what if a student’s OPT ends before the H1B begins?

In such a case, a student may be eligible to continue their employment under the “cap-gap” extension granted by USCIS. To qualify for such an extension, the student must meet these requirements:

The F1 student is authorized for OPT employment (even if the OPT period has expired);
The F1 student has not violated the terms and conditions of their non-immigrant status;
The H1B petition was timely filed; and
The H1B petition requested an H1B employment start date of October 1 of the applicable fiscal year.

The cap-gap period starts when an F1 student status and employment authorization expires and, unless terminated, ends on October 1, the start date of the H1B petition that has been filed on their behalf. To ensure the student’s H1B is approved by October 1, the employer should consider “premium process” for the H1B application.

Please note: cap-gap status is a complex timing issue, and factors involved include the semester in which a student will graduate, the processing time for approval of his or her employment authorization, and the expiry date of that employment authorization, coupled with the H1B filing period. Therefore, close scrutiny of all of these factors is critical in order that the student avail not only of the STEM OPT, but also to maximize the number of chances a student may have to seek an H1B visa slot in the lottery, and, for an employer to timely file the application so as to avail of the cap-gap.

In conclusion, the USCIS has granted significant benefits to students for curricular practical training, as well as both pre-and post-completion optional practical training. However, along with these grants come significant legal obligations and responsibilities.

Travel outside the USA

Finally, an F1 student may travel outside the USA and return to the USA during the cap-gap period under certain circumstances, including having already obtained employment in the USA.

Leaving the USA

Once a student completes their post-completion practical training, they have a grace period of 60 days to leave the country, or to start a new educational program, or to change to another non-immigrant or immigrant status.

Conclusion

As you can see from the above, a detailed analysis of the policy manual and the regulations at 8 C.F.R. §214.2 (f) and §214.16 is the starting point for any strategic planning for an F1 students pre-as well as post-completion employment. It is highly advised that the student consult a qualified legal advisor, such as an attorney or an experienced designated school official, before taking the steps necessary to avail all the benefits of post-completion practical training.

Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.

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USCIS issues updated policy memorandum