By Ekaterina Powell, Esq.
Our office has received a few inquiries on the subject of volunteer work while on OPT and consequences of unemployment, and we have decided to address these issues in further detail for our readers.
Conditions of Employment while on OPT
The main conditions of employment while on OPT include the following:
- The work must be related to the field of study
- Employment must be for at least 20 hours per week for post-completion OPT. For pre-completion OPT, employment cannot exceed 20 hours per week while school is in session.
Conditions of Employment while on STEM OPT Extension
- The work must be related to the field of study
- Employment must be for at least 20 hours per week
- Employer must be enrolled in E-verify
If a student has variable schedule (sometimes works more than 20 hours a week and sometimes less than 20 hours), within a month it should average out to at least 20 hours per week.
It is recommended that the student maintains evidence for each job documenting the position held, proof of the duration of that position, the job title, contact information for the student’s supervisor and the description of work to show that the work is related to the degree program.
Students in performing arts should maintain a list of all engagements, the dates and durations, and the related proof to document employment.
Employment authorization granted under OPT and STEM OPT gives you the right to switch employers at any time. However, new employment has to comply with the basic OPT requirements as described above. For STEM OPT, the new employer must be enrolled in E-Verify.
The following types of employment are authorized while on OPT and STEM OPT:
- Self-employment (must have the business set up and be enrolled in E-Verify for STEM OPT)
- Employment as an independent contractor (1099 employment as opposed to being on the payroll)
- Employment through an agency or consulting firm (the employment agency must be enrolled in E-Verify for STEM OPT)
- Multiple employers (as long as all of them are enrolled in E-Verify for STEM OPT)ICE has clarified in its SEVP Policy Guidance of 2010 that OPT employment can be unpaid, volunteer-based. Any such employment will not count toward unemployment limit.
- While volunteer/unpaid work is specifically authorized for students on OPT, it is not so clear with employment while on STEM OPT Extension.
Volunteer Work while on OPT
ICE’s 2008 SEVP OPT Policy Guidance contained explicit language prohibiting the use of volunteer experience to count towards the fulfillment of a student’s employment obligations while in the 17-month extension OPT period.
However, in 2010, this policy guidance was revised and replaced by the current version, which eliminated this restrictive language. Absent explicit prohibition of the use of volunteer experience, particular when such a restriction was previously in place, it is reasonable to conclude that a student engaged in an unpaid position related to his/her degree program would not be considered “unemployed.”
Specifically, SEVP OPT Guidance of 2010 states that it “[r]emoved restriction that employment during the 17-month extension must be paid employment. SEVP will need approval for such a restriction through another proposed rulemaking.” This specific language suggests that unpaid employment while on STEM OPT extension qualifies as employment.
In addition, the student on STEM OPT extension is not required to provide wage information to the DSO to comply with the reporting requirement. According to SEVP Policy Guidance of 2010, section 8.7, the student must send the DSO a validation report every six months, starting from the date the 17-month extension starts and ending when the student’s F-1 status ends or the 17-month extension ends, whichever is first.
The validation report must include the student’s 1) Full legal name, 2) SEVIS identification number (if requested by the school), 3) Current mailing and residential address, 4) Name and address of the current employer, and 5) Date the student began working for the current employer.
Other sections of the SEVP 2010 Policy Guidance are not so clear in that respect as the guidance lists the types of experience permitted while on both regular and STEM extension OPT. The list specifically permits volunteer experience while on regular OPT but the list does not include volunteer work in the list of acceptable forms of employment for STEM extension OPT, which creates the confusion.
While we are left with a bit of a grey area, it is reasonable to conclude based on the SEVP Guidance of 2010 that volunteer work is permitted and will not count toward the “unemployment” maximum.
For a full text of ICE’s 2010 SEVP Policy Guidance, please follow this link.
Unemployment while on OPT
Students on OPT are limited to a cumulative total of 90 days of unemployment. If you are unemployed for an aggregate of more than 90 days during your approved OPT period or more than 120 days if you are on the 17-month STEM OPT Extension, your work permission and F-1 status is terminated.
With STEM OPT Extension approval, you are allowed to accumulate only 30 additional days of unemployment for a total of 120 days throughout the 29 months of OPT and STEM Extension. For example, if you have already accrued 90 days of unemployment while on OPT and then were granted STEM OPT Extension, you can only be unemployed for 30 more days.
What counts as unemployment? Each day including weekends during the period of OPT/STEM OPT that the student does not have qualifying employment counts as a day of unemployment.
Travel outside of the U.S. while on OPT or STEM OPT counts as unemployment unless the student is either employed during a period of leave authorized by the employer or is traveling as part of his or her employment.
If you are close to reaching your maximum unemployment limit, you need to take immediate steps to cure your situation, change your status or depart the U.S. not to accumulate any unlawful presence.
*Practice Tip: As a practical matter, it is recommended that students should never exceed their unemployment limits. In situations when you cannot find paid employment at least try to volunteer or do some unpaid work for 20 hours per week to maintain your status. Employers will be more likely to accept you as a volunteer or unpaid intern and that way you will be in a valid F-1 OPT status.
Periods of unemployment are monitored through the required OPT reporting with your DSO, so it is important to keep this information current. The students should report changes in employment to the DSO at the school as soon as possible, ideally within 10 business days.
While DSOs should advise students of the options available upon reaching the limit of unemployment, it is the student’s responsibility to monitor his or her unemployment status and to take steps to cure the situation by transferring to another school program, otherwise take steps to maintain status in the U.S., or depart the country.
ICE/SEVP has the right to examine SEVIS records and terminate a student’s record if it finds out that the student failed to maintain the proper period of employment. In such cases, the student will be given an opportunity to show that he or she has complied with all OPT requirements and has maintained valid employment.
A student who has exceeded the period of unemployment and has not corrected it, has violated F-1 status. In that case, Department of Homeland Security can deny future immigration benefits to the student that rely on the student’s valid F-1 status.