Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies. early-stage startups
“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.”
I’m currently an international student studying bioinformatics at a university in the U.S. What options do I have to work before and after graduation on my student visa? Do any of these options allow me to create my own startup?
— Wanting to Work
Summary: In 2020, U.S. Citizenship and Immigration Services made it easier for startups—and all other companies—to enter a candidate in the annual H-1B lottery by reducing the upfront cost of doing so. Yes, it can be worth trying to get an H-1B, but given the odds of getting a candidate selected in the H-1B lottery, it’s also worth checking out the O-1A extraordinary ability visa for your co-founder. Register for our 15-module course to find out what it takes to submit a strong application for an O-1A visa, as well as for the EB-1A or EB-2 NIW green card. Use code DEARSOPHIE for 20% off. And don’t miss Sophie’s free Immigration AMA (Ask Me Anything) on Nov. 4, at 9AM Pacific. Register here.
Full Dear Sophie article:
I applaud your enthusiasm to get to work! The opportunity to work and get training in your field is one of the draws of studying in the U.S. (although of course, the F-1 student visa is for nonimmigrant intent!)! Complex immigration rules and regulations for international students—not to mention the processing delays and time limits—can make things challenging. Still, all you need is a little advanced planning to overcome those challenges!
Your ability to work in your area of study—and for how long—depends on what type of student visa you hold:
- F-1 student visa
- J-1 educational and cultural exchange visa
- M-1 student visa
F-1 offers the most flexible work options student visa
The F-1 student visa offers the most options to work both before you graduate and after. Two types of training programs are available to most international students who hold an F-1 visa, making them eligible to work in their field of study:
- Curricular Practical Training (CPT) is available to currently enrolled students at some colleges and universities.
- Optional Practical Training (OPT) is available either before or after graduation.
- STEM OPT is a 24-month extension of OPT that is available to students who graduated with a STEM degree designated by the U.S. Department of Homeland Security.
Working under CPT
If CPT is available at a university or college, then students on F-1 visas are eligible if they have been enrolled full-time for at least one academic year and have not yet graduated. Some graduate programs allow or even require students to apply for CPT at the very beginning of their program.
Students can get a job offer from a company or start their own company, but they must get approval for CPT from the Designated School Official (DSO) at their university or college. Information about the job that the DSO will need to decide whether the job qualifies:
- the position
- time commitment
- any additional information requested
If authorized, the student will receive an updated Form I-20 (Certificate of Eligibility for Nonimmigrant Student Status).
Keep in mind that one year of full-time CPT (more than 20 hours of work per week) means a student is ineligible for OPT. However, part-time CPT (20 hours per week or less) will not impact a student’s eligibility for OPT.
Working under OPT
Like CPT, OPT is limited to 12 months. Students are eligible for 12 months of OPT either before they graduate, which is called pre-completion OPT, or after they graduate, which is called post-completion OPT.
Most F-1 students choose to start OPT after they graduate so they can work full-time. Students who choose to do pre-completion OPT can only work part-time when school is in session, and every two months of part-time OPT during school will reduce by one month the amount of OPT after graduation.
If an F-1 student wants to work while taking courses, I recommend considering pursuing CPT if available at their university and working part-time to conserve post-completion OPT.
Under OPT, F-1 students can either work for a company or their own startup! Unlike CPT, the student must apply for a work permit by:
- Getting the DSO’s authorization for OPT, including the DSO’s signature on Form I-20.
- Submitting to U.S. Citizenship and Immigration Services (USCIS) within 30 days of the DSO’s endorsement:
- the signed I-20
- Form I-765 (Application for Employment Authorization Document)
- filing fee
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. I recommend applying for employment authorization as soon as possible since USCIS is still working through its backlogs. F-1 students or graduates can begin working on OPT once they receive the work authorization card from USCIS. The application is now available digitally.
Students or graduates on OPT can qualify for a 24-month extension if they earned a STEM degree; they can continue working for the company they worked for under OPT or work for another company! For those who continue to work for a company they founded or if they want to start their own company, I recommend consulting with an immigration attorney for a successful immigration strategy!
STEM OPT has requirements that are different from OPT including:
- The company you work for must be enrolled and remain in good standing in the federal government’s E-Verify program.
- The employer must provide a formal training program in the student or graduate’s field of study.
- Offer a position that is commensurate with other U.S. workers in duties, hours, and compensation.
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 the student graduates, but no later than 60 days after graduation.
Working as a J-1 student
A Responsible Officer (RO) of the program that sponsored a student’s J-1 visa can authorize that student to work before or after graduation. Unlike OPT and STEM OPT, J-1 graduates who received academic training authorization do not apply to USCIS for an EAD card. An official letter from the RO and evidence of valid J-1 status enable graduates to work for up to 18 months or 36 months if they recently completed STEM-related studies or for postdoctoral training.
J-1 students can be employed a maximum of 20 hours per week for both on-campus and off-campus employers during the academic year. They can work full-time (more than 20 hours per week) during summer, during official breaks, and after graduation.
While J-1 students can brainstorm and set up their own companies, they cannot work for their own companies without approval from their program’s RO.
Practical training for M-1 students
International students with an M-1 visa are eligible for practical training in their field in the U.S. if that training is unavailable in their home country.
The practical training period equals one month for every four months of full-time coursework completed. The maximum is six months of practical training. During that time M-1 students must work at least 20 hours per week.
The practical training must start after the student graduates, but students can apply for work authorization:
- up to 90 days before their program end date
- but no more than 60 days before they graduate or 30 days after they graduate.
M-1 students must file for an extension of M-1 status at least 60 days beyond the period they are allowed to work so they do not fall out of status during the time they are employed. They must apply for a work permit by submitting form I-765 and DSO approval to USCIS.
Employers can register F-1 students each year they are on CPT, OPT, and STEM OPT in the annual H-1B lottery in March. Employers can sponsor the individuals for a cap-exempt H-1B visa if they are not selected in the lottery.
You’ve got this!
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