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Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
Dear Sophie,
I work in talent acquisition for a rapidly scaling startup, and I’m looking for an edge to onboard top engineers.
I’m seeing many stellar candidates who are about to graduate from a U.S. university and who mention programs like CPT, OPT and STEM OPT. How do we recruit and retain them?
— Rigorous Recruiter
Dear Rigorous,
Many startups overlook the pool of talented international students or those who recently graduated or will soon graduate from U.S. colleges or universities — many of whom want to remain here to work — because the companies might feel intimidated by what they know they don’t know about the U.S. immigration process.
Early-stage startups often assume that offering a job to an international student or recent graduate on an F-1 student visa might be too complicated, or they worry if it’s too hard for an early-stage startup to secure them an H-1B. I recently dove into What You Need to Know About Hiring Students on OPT on my podcast. Fortunately, international students and grads provide a rich talent pool full of highly motivated individuals, and managing their immigration is totally possible.
The two main types of training programs available to most international students who hold an F-1 visa to work in their field of study include:
- Curricular Practical Training (CPT), which is available at some colleges and universities to currently enrolled students. Not every university or degree program offers it.
- Optional Practical Training (OPT), which is available during coursework (Pre-Completion OPT) or after graduation (Post-Completion OPT) and in some cases can be extended through the STEM OPT extension.
Unlike work visas, employers do not have to directly “petition” F-1 students for CPT and OPT (for example, the Form I-129, which is used for H-1Bs and O-1As, is not involved). However, CPT and OPT require the student to work in an area directly related to their field of study, and the employer may need to provide information or other documents such as a training plan for the student to qualify or apply. I’ll go into these in more depth below.
For an H-1B in the lottery, a startup only needs to meet some basic H-1B sponsorship requirements to have a shot. These can include being incorporated, offering a specialty occupation job, and having the ability to pay the H-1B candidate’s salary for the term of the requested H-1B petition (usually up to three years). Then a startup’s candidate has the same chance of being selected in the annual lottery as a candidate with the same education level who is sponsored by a tech giant. (Big Tech and tech consulting companies may tend to sponsor a lot of people in the lottery, but their candidates are not given extra weight in the government’s process!) In addition, a proposal to shift from a random H-1B lottery to a wage-based lottery was thrown out by a federal court judge in September, so next year’s lottery will be random with a slight preference for candidates with advanced U.S. degrees, but no preference based on salary.
I recommend that you consult with an experienced immigration attorney to guide you, your startup and the student or graduate through this process. An immigration attorney can also help you strategize the best course of action for the students and graduates that you decide to sponsor for a work visa or green card.
Image Credits: Joanna Buniak / Sophie Alcorn
How does CPT work?
Curricular Practical Training (CPT) is available at somes universities where training is already an integral part of the school’s established curriculum. Some graduate programs allow or even require students to apply for CPT at the very beginning of the program, dubbed “Day 1 CPT.”
Students must get approval for CPT from the Designated School Official (DSO) at their university or college. If you want to hire an international student on CPT, the student will need to provide information about the job to the DSO, such as the position, duties, wage, time commitment and any other information the DSO may request to decide whether the job qualifies.
One year of full-time (more than 20 hours per week) CPT eliminates a student’s eligibility for OPT. However, part-time (20 hours per week or less) CPT will not impact a student’s eligibility.
How does OPT work?
Like CPT, Optional Practical Training (OPT) is limited to 12 months. OPT is available to international students at each education level: bachelor’s, master’s and doctoral.
There are two types of OPT: pre-completion (before graduation) and post-completion. Most F-1 students choose to start OPT after graduation so that they can work full time. Under pre-completion OPT, students can only work part time. Every two months of part-time, pre-completion OPT will reduce by one month the amount of OPT that can be done after graduation.
If a student wants to work while taking courses, I often recommend pursuing CPT if available and work part time to preserve post-completion OPT.
For OPT, the student must apply to U.S. Citizenship and Immigration Services (USCIS) for a work permit. How do they do it? The student must obtain the DSO’s authorization and signature on Form I-20 (Certificate of Eligibility for Nonimmigrant Student Status). That form, along with Form I-765 (Application for Employment Authorization Document) and the filing fee, must be submitted to USCIS within 30 days of the DSO’s endorsement.
For post-completion OPT, Form I-765 can be filed as early as 90 days before the student graduates, but no later than 60 days after graduation. If a student is applying on or before October 31, 2021, then the application can be filed as early as 120 days before graduation. That temporary change resulted from a settlement in a class-action lawsuit. The student or graduate can begin working once the work authorization card is received.
How does the STEM OPT extension work?
Students or graduates on OPT can qualify for a 24-month extension if they earned a STEM degree. To be eligible to hire an individual on STEM OPT, your startup must:
Be enrolled and in good standing in the government’s E-Verify program; provide a formal training program in the individual’s field of study and complete Form I-983 (Training Plan for STEM OPT Students); and offer a position that is equivalent to others in duties, hours and compensation, among other legal requirements.
STEM OPT also requires a new work permit. Form I-765, an updated Form I-20 that is signed by the DSO can be filed as early as 90 days before OPT ends (or 120 days if filing on or before October 31, 2021), but no later than 60 days after the DSO signs off on the I-20. Candidates seeking a STEM OPT extension can still continue to work for I-9 purposes for up to 180 days while they are waiting for the approval.
What happens next?
Graduates have a 60-day grace period following their OPT or STEM OPT expiration date to either leave the U.S., change to another status or start a new degree program on an F-1 visa.
Any students your startup wants to retain should be registered in the annual H-1B lottery in March of each year. You can enter students in the H-1B lottery even before they graduate. If they don’t get selected, you can register them the following year, and so on until they’re selected or their time on OPT or STEM OPT runs out.
Some students might be eligible to stay working in the U.S. while their H-1B is pending in a status called “Cap Gap.” Your immigration attorney can help you determine alternatives to the H-1B for students and graduates based on their situation.
For more educational resources, check out our podcast, The Visa Options All Recruiters Should Know.
I wish you every success!
— Sophie
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!
