What Next? Visa Options for Working and Living in the US After Graduation

At the Sutardja Center for Entrepreneurship & Technology we welcome many international students to our programs. But what happens after graduation? Our thanks to SCET mentor Nadia Yakoob for contributing the article below to help students understand options for staying in the U.S. after graduation to build a startup, work, or study


There’s nothing more rewarding than putting your educational degree to practical use. This article is the first in a five part series of articles about U.S. visa options for living and work in the U.S. after graduating.

Our first article covers Optional Practical Training (“OPT”), which US immigration law grants to international students upon finishing their university-level studies. You are allowed to get twelve months after each level of study you complete. So, let’s say you do a Bachelor’s degree in the US and then a Master’s degree, you will get a total of two years of OPT combined (one year after your bachelor’s degree and then another year after finishing your master’s degree). However, you will not get another year if you complete two degrees at the same level. What that means is if you do a Master’s in Computer Science and use your one-year of OPT after graduating, you will not be eligible for another year of OPT if you go back to school for another Master’s degree. There also is the possibility for a 24-month extension for graduates in Science, Technology, Engineering and Math (“STEM”) fields, which will be described in greater detail below.

Am I eligible for OPT?

An F-1 student who has been lawfully enrolled in full-time status for an entire academic year at a Student and Exchange Visitor Program (SEVP) certified college, university, conservatory, or seminary is eligible for OPT.

When can I start OPT employment?

F-1 students have the option of Pre-Completion and Post-Completion OPT. Pre-Completion OPT authorizes an F-1 student to work part-time when school is in session and up to full-time when school is out of session. Post-Completion OPT authorizes an F-1 student to work either part-time or full-time after the completion of his or her studies. It is important to note that all periods of Pre-Completion OPT will be deducted from the maximum 12 months of OPT authorization.

You also can work for yourself, as an independent contractor, for a temporary agency, or volunteer on the OPT. It is not necessary to be employed by a US employer in order to comply with the terms of OPT.

How can I apply for OPT?

First, you must get a designated school official at your academic institution to recommend your OPT by endorsing your Form I-20. Then, you must file Form I-765, Application for Employment Authorization, with the required fee and supporting documentation (such as the properly endorsed Form I-20, passport bio page, and passport photos) with USCIS. Please note that you cannot begin employment until your Application for Employment Authorization has been approved and you have received the Employment Authorization Document.

What if I run out of time on my OPT?

Generally, the goal during the year of OPT is to find a US employer that will sponsor you for an employment-based visa to follow the expiry of your OPT. F-1 students who have degrees in STEM fields have the option of extending their Post-Completion OPT for an additional 24 months (STEM OPT). If you are unable to find an employer to sponsor you and you are not eligible for the STEM OPT, there is a 60-day grace period that begins when the OPT expires in order to finalize your departure from the US. You cannot work during these 60 days.

Am I eligible for STEM OPT?

An F-1 student is eligible for STEM OPT if:

  1. S/he has a degree in science, technology, engineering, or math that is found on the STEM Designated Degree Program List;
  2. His or her employer is enrolled in E-Verify; and
  3. S/he has been granted OPT and is currently on OPT.

How can I apply for STEM OPT?

First, your employer must complete a training program for you on Form I-983. Then, you must submit your signed training program to a designated school official at your academic institution for approval of your STEM OPT extension. This is done by endorsing your Form I-20. Once your I-20 is endorsed, you must file Form I-765, Application for Employment Authorization, with the application fee and supporting documents (including a copy of your STEM degree) with USCIS. You do not need to submit the training program with your application.

Unlike OPT, you are not allowed to work for yourself, as an independent contractor, or as an “employee” of a company you founded on the STEM OPT. The STEM OPT regulations explicitly require that you are being trained by a US employer in the field of your study, and you must be paid (there is no prevailing wage requirement, however).

The future of OPT and STEM OPT

It is important to note that the future of OPT program is potentially unclear. A draft of an Executive Order dated January 23, 2017, aimed at protecting U.S. jobs and workers mentions the need to “reform practical training programs for foreign students to prevent the disadvantaging of US students in the workforce.” This is just a draft and is not in effect, but it gives us a clue as this administration’s priorities. That said, past lawsuits challenging the STEM OPT program were unsuccessful because the parties bringing the charges were unable to show any harm to US workers from the STEM program, so there is cause for optimism.

In the meantime, OPT and STEM OPT provide wonderful opportunities for F-1 students to put their academic learning to practical use. For international students who wish to remain in the U.S. after they complete their studies, the OPT and STEM OPT programs provide an opportunity to get practical training and for professional networking that will be essential when considering employment-based visas in the US. The next article in our series will cover the most common employment-based visa: the High Skilled Worker visa (“H-1B”).

 

Questions or concerns? Please do not hesitate to contact Nadia Yakoob, a partner at SW Law Group, a boutique immigration law firm with offices in New York, the Bay Area, and Tokyo. She can be reached at nadia@swlgpc.com

 

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