Work authorization and maintenance of status issues for students Robyn Brown, The University of Akron David Cook, Vorys Sater Seymour and Pease LLP Laura Jurcevich, Porter Wright Morris & Arthur LLP

Eligibility Requirements for Optional Practical Training, STEM OPT, and Curricular Practical Training Criteria for CPT and OPT eligibility: 8 CFR 214.2(f)(10) “lawfully enrolled on a full time basis . . . for one full academic year” “directly related to his or her major area of study” CPT “integral part of an established curriculum” 8 CFR 214.2(f)(10)(i) Policies and procedures for authorization vary among higher education institutions (e.g., Day 1 CPT, which activities require CPT authorization, whether they will authorize full-time CPT during the academic year, etc.)

Eligibility Requirements for OPT, STEM OPT, and CPT Standard OPT – 8 CFR 214.2(f)(10)(ii)(A) Pre-completion and post-completion OPT – no offer of employment needed STEM OPT – 8 CFR 214.2(f)(10)(ii)(C) CIP code of degree must appear on DHS STEM Designated Degree Program List Students may qualify if they are still completing thesis or dissertation Job must be paid and at least 20 hours per week Employer must be enrolled in E-Verify and have EIN Bona fide employer-employee relationship must exist Form I-983 training plan needed Student must apply before expiration of current OPT

Use of CPT may affect OPT One year of full-time CPT disqualifies student from OPT – 8 CFR 214.2(f)(10)(i) Reports of RFEs and denials of petition-based applications for COS indicate some USCIS adjudicators have been aggregating CPT and OPT SEVP updated its practical training page in Dec 2018 to reaffirm that part- time CPT will not disqualify student from OPT

OPT Application Backlogs and Challenges for Students Due to Filing Window 90-day application window but often 90+ day processing times at USCIS Latest date student can request for OPT start date is 60 days after program end date No way to extend a student’s program end date in SEVIS after it has passed Students should consider USCIS processing delays when requesting OPT start date and be up front with employers regarding unpredictability

STEM OPT and Cap Gap Extensions Extension of Employment Authorization for 180 Days Timely filed application for extension of employment authorization 180 days or until a written decision by USCIS, whichever is earlier DSO endorsed I-20 In practice applies to STEM students Cap Gap Timely filed change of status H-1B petition Gap between the end of the OPT and October 1 due to the H-1B cap OPT must expire April 1 or later Must not have violated non-immigrant status

Latest Developments in STEM OPT Site Visits STEM OPT site visits appear to be folding into SEVP Field Representatives’ duties Important to meet Form I-983 obligations SEVIS functionality was updated in mid-Sept to track accrued days of unemployment during OPT (maximum: 90 days for standard OPT; aggregate of 150 days for standard OPT + STEM OPT)

Travel During Pending or Authorized OPT, STEM OPT, and CPT Current student Before program end date Pending OPT Permissible but not recommended in case of OPT denial Approved OPT Valid passport Valid F-1 visa I-20 with OPT recommendation and travel signed by DSO within last 6 months Unexpired EAD Job offer letter or letter of employment Not recommended if maximum days of unemployment have been exceeded Not recommended if student needs to renew visa (immigrant intent issue)

Travel Issues (continued) Pending STEM OPT If EAD expired travel not recommended If EAD valid travel permissible Pending cap-gap change of status Not recommended due to abandonment Approved cap-gap change of status Readmission as F-1 before H-1B start date

Driver’s License Renewal Ohio BMV must verify an applicant’s legal presence in the US A non-renewable/non-transferable Ohio driver license or ID card Same expiration date as the document issued by USCIS or four years, whichever is sooner Regardless of grace periods extending the expiration date Applicants must present current USCIS documents and proof of Ohio residency for each ID card or license issuance.

Driver’s License Renewal (continued) Common acceptable documents used for proof of legal presence: Attending school Valid passport, visa, I-94, DS2019 or I-20 and proof of Social Security number, if any Employment Valid EAD and proof of Social Security number, if any Valid passport, visa, I-94, I-797 with acceptable employment case type and a letter from employer on letterhead dated within last 60 days and proof of Social Security number, if any Problems with SAVE Students with I-20 program end date in the past & pending OPT application are being told their lawful status cannot be verified

Entrepreneurial or Self-Employment Issues CPT Most schools take the stance that self-employment is not permitted under CPT Could be possible to structure a CPT program in which the student-owned company is the sponsoring employer Receive training from another corporate leader in area where student does not oversee business operations Would need to document company’s right to control student Carefully craft cooperative agreement between company and school

Entrepreneurial or Self-Employment Issues OPT Self-employment is expressly permitted Student must be able to demonstrate that the business has all proper business licenses and is actively engaged in business directly related to the student’s degree program Unpaid work is permitted as long as labor laws are not violated and US workers are not displaced

Entrepreneurial or Self-Employment Issues STEM OPT 2016 regulations limited the availability of use of STEM OPT for self-employment Start-ups are permissible employers so long as all requirements under STEM OPT are met, including having resources to provide training and compensation commensurate to that offered to similarly-situated US workers Student may not sign the Training Plan as the employer Minority owner-employee may be able to qualify for self-employment depending on arrangement Unpaid work is prohibited

Transitioning from Student Status to Employment-Permitting Nonimmigrant Visa Status H-1B (Specialty Occupation) Maximum 6 year period of continuous stay (further extension may be available if a green card petition is pending) Capped at 65,000 annually (some exemptions) Apply on April 1 for H-1B visa status to be effective on following October 1 Lottery employed since demand far exceeds supply

Transitioning from Student Status to Employment-Permitting Nonimmigrant Visa Status E-2 (Treaty Investor) National of a treaty country may be admitted to the US when investing a substantial amount of capital in a US business US business must be owned at least 50% by nationals of the treaty country If investor, must seek to enter the US to develop and direct the investment enterprise If an employee, must engage in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications