OPT Issues and H-1B Cap Update for Fiscal Year 2016

This message will address issues related to:

1.  90 days of unemployment for F-1 students on OPT

2.  H-1B Update

3.  Alternatives to the H-1B after the limit has been reached

1.  F-1 Optional Practical Training (OPT) rules changed in April 2008. One of those changes was a provision that limited periods of unemployment to 90 days cumulative during the 12 month OPT period.

Many questions have been raised about this requirement. It is unclear if someone is unemployed more than 90 days, how or when they will be negatively impacted. It seems likely to be an issue at either the port of entry or if someone is seeking a change of status.  The Office of International Education (OIE) recommends that students on OPT think broadly about their employment options and make every attempt to avoid 90 days of unemployment. Students should update OIE with address and employer information through our OPT Reporting Portal so we can report it to the immigration database.

The Student and Exchange Visitor Program (SEVP) has provided guidance about what constitutes “employment” for students on the 12 month period of OPT. Employment may include:

• Paid employment. Students may work part time (at least 20 hours per week when on post-completion OPT) or full time.
• Multiple employers. Students may work for more than one employer, but all employment must be related to the student’s degree program and for pre-completion OPT cannot exceed the allowed per week cumulative hours.
• Short-term multiple employers (performing artists). Students, such as musicians and other performing artists may work for multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration. If requested by DHS, students must be prepared to provide evidence showing a list of all gigs.
• Work for hire. This is also commonly referred to as 1099 employment where an individual performs a service based on a contractual relationship rather than employment relationship. If requested by DHS, students must be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company.
• Self-employed business owner. Students on OPT may start a business and be self-employed. In this situation, the student must work full-time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student’s degree program.
• Employment through an agency. Students on post-completion OPT must be able to provide evidence showing they worked an average of at least 20 hours per week while employed by the agency.
• Unpaid employment. Students may work as volunteers or unpaid interns, where this does not violate any labor laws. The work must be at least 20 hours per week for students on post-completion OPT. These students must be able to provide evidence from the employer that the student worked at least 20 hours per week during the period of employment.

2.  As of 4/7/2015, US Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2016.

Once the cap is reached, no more H-1B visas will be available for that fiscal year (Oct. 1, 2015-Sept. 30, 2016) for private sector jobs, unless the US Congress mandates some type of temporary relief or comprehensive immigration reform. Once the cap is reached for this fiscal year, additional H-1Bs will not become available again until October 2016.

This is very stressful for many people, and we share the concerns that students have about the difficulties and uncertainties of this situation. OIE is committed to providing as much support and assistance to students as we can. Other offices on campus are equally committed to assisting students; use campus resources as needed -- Career Center, Counseling and Psychological Services (for stress management and counseling), Student Health (for stress or anxiety-related physical problems), etc.

For those of you who have job offers and your employers have filed or will be filing H-1B petitions on your behalf, maintain open communication with your employers. It will take several weeks to sort out which of the applications submitted for this fiscal year will be accepted and approved.

3.  Alternatives to the H-1B after the limit has been reached

You should start thinking about alternatives to H-1B status if you want to stay in the US to work. Below we have listed some options for you to consider.

Students should apply for and use all of the Optional Practical Training (for F-1 students) or Academic Training (for J-1 students) for which they are eligible. F-1 students who are in designated STEM fields and have employment with an E-Verify-participating employer may be eligible for a 17-month STEM OPT extension. 

Additional options to consider:

• Are you a citizen of Chile or Singapore? Check to see if H-1B1 visas (under Free Trade agreements) are available for you.
• Are you Canadian or Mexican citizen? Look for jobs that will qualify you for TN status.
• Are you Australian? Consider E-3 status. 
• Have you previously been in H-1B status with a cap-counted employer? If so, an employer may petition for a new H-1B for you as you have already been cap-counted.
• Look for jobs with cap-exempt employers:

1. an institution of higher education or a related or affiliated nonprofit entity;
2. a nonprofit research organization; or
3. a governmental research organization.

• Look for jobs with international organizations or with your government (Embassy/Consulate) to obtain a G or A status.
• Would you qualify for O-1 status? (Graduate students only.) 
• Would you qualify for P status as an athlete, artist or performer?
• Is your spouse in the US? You may be able to change to a dependent status which may or may not allow you to work (depending upon the dependent status) but will allow you to remain in the US with your spouse.
• Are you interested in further study? Now may be the time to continue your education with a new degree or level of study. F-1 students are eligible for a new 12 month period of OPT for each higher level of study. F-1 students can only have one 12 month period of OPT per level of study; however, so pursuing another degree at the same level will not qualify a student for additional OPT.
• If you exhaust all options within the US, you may need to return home or search for jobs in other countries. You do not have to physically be present in the US for an employer to petition for an H-1B for you; you may decide to work outside the US for a year or two and return when H-1B visas are available again.