OPT Unemployment Period

In 2008 the Department of Homeland Security changed certain rules on the implementations of Optional Practical Training (OPT). The OPT rules are particularly important to many F-1 students as they may need the period of time to stay in OPT before they can apply for change of status to other nonimmigrant status such as H-1B or other statuses in order to stay legally in the US after graduation.

One important aspect of the new OPT rules is that the new rules set limits on the total days of unemployment during a period of authorized OPT. It is also important to know what constitute unemployment during the period of authorized OPT. The following are frequently asked questions on the subject of periods of unemployment.

What are the limits on periods of unemployment?

Students on post-completion OPT may have up to 90 days of unemployment. Students who have OPT extended due to the cap gap provisions continue to accrue unemployment time and are subject to the 90-day limit on unemployment. Students who receive a 17-month extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.

Is a student who splits OPT between two degrees at the same education level limited to a total of 90 days of unemployment?

No, the student is not limited to a total of 90 days of unemployment in this case. For each new period of post-completion OPT, the student will have the full 90-day period of unemployment.

How many hours does a student need to work per week during post-completion OPT (including the 17-month extension) to be considered employed?

A student must work at least 20 hours per week in a qualifying position to be considered employed. If a student has a variable schedule, within a month, it should average out to at least 20 hours per week.

What counts as time unemployed?

Each day (including weekends) during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. OPT authorization begins on the employment start date shown on the student’s EAD.

If a student does not receive the approved EAD, the missing EAD is not returned to the USCIS Service Center, and the student applies for a replacement EAD, when does the student begin accruing unemployment?

The “clock” for unemployment starts after issuance of the replacement EAD by USCIS.

How does travel outside the United States impact the period of unemployment?

Time spent outside the United States during an approved period of post-completion OPT counts as unemployment against the 90/120-day limits, unless the student is either:

Employed during a period of leave authorized by an employer; or
Traveling as part of his or her employment.

What types of employment are allowed for regular pre- and post-completion OPT?

All OPT employment, including post-completion OPT, must be in a job that is related to the student’s degree program. For students who are not on a 17-month extension, this employment may include:

Multiple employers. A student may work for more than one employer, but all employment must be related to the student’s degree program and, for pre-completion OPT, can not exceed the allowed per week cumulative hours.
Short-term multiple employers (performing artists). A student, such as a musician or other type of performing artist, may work for multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration.
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 an employment relationship. If requested by DHS, 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 has the proper business licenses and is actively engaged in a business related to the student’s degree program.
Employment through an agency or consulting firm. A student on post-completion OPT must be able to provide evidence showing he or she worked an average of at least 20 hours per week while employed by the agency.
Paid employment. A student may work part time (at least 20 hours per week when on post-completion OPT) or full time.
Unpaid employment. A student may work as a volunteer or unpaid intern, where this practice does not violate any labor laws. The work must be at least 20 hours per week for a student on post-completion OPT. A student must be able to provide evidence acquired from the student’s employer to verify that the student worked at least 20 hours per week during the period of employment.

What types of employment are allowed for students during a 17-month extension of OPT?

A student authorized for a 17-month extension must work at least 20 hours per week for an E-Verify employer in a position directly related to his or her DHS-approved STEM CIP. For a student who is on a 17-month extension, this employment may include:

Multiple employers. A student may work for more than one employer, but all employment must be related to his or her degree program and all employers must be enrolled in E-Verify.
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 an employment relationship. The company for whom the student is providing services must be registered with E-Verify. If requested by DHS, 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 a 17-month extension can start a business and be self-employed. In this situation, the student must register his or her business with E-Verify and 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 his or her degree program.
Employment through an agency or consulting firm. A student on a 17-month extension may be employed by an employment agency or consulting firm. The employment agency or consulting firm must be registered with E-Verify, but the third parties contracting with the agency or firm (for which the student is providing services) need not be.

Can a student work multiple jobs during a 17-month extension of OPT?

Yes, but all the employers must be enrolled in E-Verify.

How does a student show that employment is directly related to his or her degree program?

SEVP recommends that the student maintain evidence for each job documenting the position held, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager, and a description of the work. If it is not clear from the job description that the work is related to the student’s degree, SEVP recommends that the student obtain a signed letter from his or her hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.

What should a student report to ensure that his or her status does not expire due to excessive unemployment time?

The student should report changes in employment to his or her DSO as soon as possible. SEVP recommends that the student report any change within 10 business days of the change to avoid situations where a DHS official may determine the student is out of status.