1. 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

2. 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.)

3. 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

4. Use of CPT may affect OPT
One year of full-time CPT disqualifies student from OPT – 8 CFR (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

5. 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

6. 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

7. 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)

8. 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)

9. 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

10. 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.

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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