OPT and Unemployment
Each day that the student is not employed in a qualifying job is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT, including those with a cap-gap extension
STEM OPT extension are given an additional 30 days of unemployment time for a maximum of 120 days.
NOTE: SEVP rescinds 10-day counting exceptions. Prior SEVP Policy Guidance provided 10-day exceptions to the counting of unemployment time for the first 10 days from the start date of the student's initial or replacement EAD, as well as while someone was between jobs. In its latest OPT Policy Guidance, SEVP deleted these 10-day exceptions, stating that "SEVP will need approval for such exceptions through another proposed rulemaking."
What Counts as Unemployment Time?
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 is employed, he or she would not be considered "unemployed" on holidays, etc. that fall within that period of qualifying employment.
Unemployment while outside the United States:
“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 is the earliest a student can apply for the 17-month STEM extension of OPT?
A student may file for the 17-month STEM extension up to 120 days prior to the end of his or her post-completion OPT.
What types of employment are allowed for regular pre- and post-completion OPT?
All OPT employment, including post-completion OPT, is required by 8 CFR 214.2(f)(10)(ii)(A) to be in a job that is related to the student's degree program.
For students who are not on a STEM extension, this employment may include:
- Regular paid employment in a position directly related to the student's program of study.
- For post-completion OPT, the work must be for at least 20 hours per week
- Students may work for multiple employers, as long as it is directly related to the student's program of study.
- Payment by multiple short-term multiple employers. SEVP says that "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. The student should maintain a list of all gigs, the dates and duration."
- Work for hire. SEVP says, "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, students should 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. SEVP says, "Students on OPT may start a business and be self-employed. The student should 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. SEVP says, "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."
- Volunteers or unpaid interns: Standard OPT. SEVP OPT Policy Guidance states that, "Students may work as volunteers or unpaid interns, where this practice does not violate any labor laws. The work should be at least 20 hours per week for students on post-completion OPT. A student should be able to provide evidence, acquired from the student's employer, to verify that he or she worked at least 20 hours per week during the period of employment.
For STEM OPT extensions, SEVP's states that employment may include the following:
- Employment of at least 20 hours per week for an E-Verify employer in a position directly related to his or her DHS-approved STEM CIP.
- 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.
How do students show that employment is directly related to their degree programs?
- SEVP recommends that students maintain evidence — for each job — of 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 highly recommends that the student obtain a signed letter from the student's supervisor or manager or the employer's hiring official stating how the student's degree is related to the work performed.
How should DSOs advise students who are close to reaching the limit on authorized unemployment?
- DSOs should advise students of the options available and on the potential problems associated with violating status by exceeding the period of authorized unemployment. To avoid violating status, prior to reaching the
- Limit on authorized unemployment, students should prepare to transfer to another SEVP-certified school, change education level, depart the United States, or take action to otherwise maintain status in the United States.
What is the impact on a student's status if the student exceeds the limit on authorized unemployment?
A student who has exceeded the period of unemployment while on post-completion OPT has violated status unless he or she has taken one of the following actions:
- Applied to continue his or her education by a change of level or transferring to another SEVP-certified school
- Departed the United States
- Taken action to otherwise maintain legal status
How will DHS enforce this provision?
A student may be denied future immigration benefits that rely on the student's valid F-1 status if DHS determines that the student exceeded the limitations on authorized unemployment.
Additionally, ICE/SEVP may examine SEVIS data for an individual, a selected group, or all students on post-completion OPT and terminate a student's record if it fails to show the student maintained the proper period of employment. In such cases, the student will be given an opportunity to show that he or she complied with all OPT requirements, including maintaining employment.