An F–1 student is defined at INA section 101(a)(15)(F), 8 USC section 1101(a)(15)(F) as an alien having a residence in a foreign country which he/she has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporily and solely for the purpose of pursuing such a course of study at an INS accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States.
This employment authorization is incident to F–1 status, and requires no INS approval. An F–1 student who is otherwise maintaining status, may work on the school’s premises up to 20 hours per week while school is in session and full–time during breaks and the student’s annual vacation. The 20–hour per week limitation while school is in session applies to all employment engaged in concurrently at any given time. On–campus employment must also not displace a U.S. worker (though no proof of this is required). Although the regulations require no specific employment authorization from INS or from the DSO, is required some form of written notification of employment eligibility from the DSO, since the student’s eligibility to work (e.g., that the student is enrolled) must be verified by school or other authorized on campus entity that will employ the student.
Regulations permit F–1 student employment due to unforeseen economic hardship. Students may apply for this form of work permission if: they are in good academic standing and are carrying a full course of study; they can show unforeseen severe economic hardship; employment opportunities on campus or under the pilot program are not available or sufficient; and acceptance of employment will not interfere with the student’s continuing in a full course of study.
INS has given the following as examples of severe economic hardship due to unforeseen circumstances beyond the student’s control: loss of financial aid or on–campus employment without fault on the part of the student; substantial fluctuations in the values of currency or exchange rates; inordinate increases in tuition or living costs; unexpected changes in the financial condition of the source of support; or medical bills; decisions will be made on a case by case decisions by the DSO.
Students and DSOs must make a reasonable effort to locate employment both on campus before resorting to employment due to severe hardship. As with other forms of student employment, students must have been in status for nine months (schools with an eight–month academic year satisfy this condition) to be eligible for hardship work permission.
To apply, a student must submit a complete Form I–538 to the DSO at the school the student is authorized to attend. The DSO then certifies on Form–538 that on–campus employment opportunities are unavailable or insufficient. (The current edition has no provision for this, so the DSO must write on the fact of the I–538 that the DSO has endorses it for severe economic hardship reasons.) Armed with the certified I–538, the student submits the following to the INS district office having jurisdiction over the student’s residence: Form I–20 ID (Student) Copy; Form I–765; the filing fee for the I–765; supporting evidence to establish the unforeseen nature of the economic hardship. If the INS approves the request, it will issue a Form I–688B employment authorization document (EAD). The student may begin employment only upon receipt of the EAD. EADs are granted for up to one year periods. Denials may not be appealed. In addition, where INS denies an application for off–campus employment based upon severe economic hardship, INS may also conclude that since the student has requested employment authorization, it follows that he or she is unable to pay his or her tuition, is no longer capable of attending school and, hence, can no longer maintain his or her F–1 status. Under such circumstances, INS may deny the request for employment authorization and notify the student that he or she has violated the terms and condition of his/her entry and must depart from the U.S. Under these circumstances, practitioners should be very conservative and think twice before permitting any foreign student to request off–campus employment based on severe economic hardship.
Curricular practical Training (CPT) is defined as employment which is an integral or important part of the F–1′s curriculum including alternate work/study, internship, cooperative education, or any other type or required internship or practicum which is offered by sponsoring employers through cooperative agreements with the school. No INS approval is required.
An undergraduate student must have completed nine months of study before being eligible to accept CPT. A graduate student may begin CPT immediately, so long as the practical training is required by the degree program; otherwise, the graduate student is subject to the nine–month rule.
Under a rule generally applicable to F–1 practical training employment, a student who falls out of status and therefore must apply for reinstatement to lawful student status, but who had been pursuing a full course of study in lawful F–1 status prior to falling out of status, is not required to wait for the passage of a new nine–month period before engaging in CPT.
Any employment required to complete degree requirements qualifies for CPT whether or not it is for–credit course. Employment not required but which is important to the program of study may qualify. The student must receive academic credit for the employment, the “course” including the employment must be listed in the school’s course handbook with a description which indicates the course is designed for hands–on–experience, and an assigned faculty member must oversee the course.
The final type of employer authorization was redefined by the INS in July, 1992, in an attempt to consolidate two separate categories of practical training, pre–completion and post–completion of studies. Whereas in the past students could avail themselves of up to a total of two years of pre–completion and post–completion full–time practical training is permitted. Part–time practical training is deducted at one–half the full–time rate.
Student must have been enrolled for nine consecutive months. The requirement could have been meet while the F–1 was studying full–time for all or a portion of the nine months while in another lawful status which allows full–time study (including, but not limited to F–2, J–2, H–4, L–2, or dependent E status).
Optional practical training (OPT) must be related to the student’s major area of study and is available in four instances: while school is in session (limited to part–time only); during the student’s annual vacation and at other times that the school is not in session; after completion of all course requirements for the degree (if the student is in a bachelor’s, master’s, or doctoral degree program); and after completion of the course of study.
The student must apply to the DSO for an endorsement on Form I–538 recommmending OPT. An offer of employment is not a prerequisite to applying for OPT. In a processing change effective June 3, 1995, an F–1 student seeking an EAD for practical training must submit the application to a Regional Service Center for processing. Student seeking OPT after completion of studies may apply as early as 90 days prior to completion or as late as 60 days after completion.
The F–1 may not receive more than 12 months of OPT unless thereafter the F–1 to begin a new course of study, or accumulates a one year absence from the U.S. before returning to resume the same course of study or changes to another nonimmigrant status for one year and then changes back to F–1 status.
Students should recognize that once OPT is granted, it cannot be recaptured if the student should decide not to use it or should the student be unable to find a training opportunity.
During the authorized period of training, reentry to the U.S. is permitted if the F–1 has a valid visa, the I–20 ID (Student) Copy, and the EAD issued for practical training, provided that the student has not violated his or her visa status.
A little notice in the F–1 student regulations suspends an F–1′s employment authorization for any type of employment where the USDOL certifies to INS that there is a strike or there labor dispute in progress at the place of employment in the occupation in which the F–1 student is working.
Please call the the Dean of Students (580)-745-2080 or call the Social Security Administration (580) 924–8202, 1–800–772–1213.