HIRING STUDENTS: CURRENT F-1 WORK

AUTHORIZATION ISSUESIlana Drummond and Nadia Johnson

415.986.4559www.jackson-hertogs.com

Agenda

F-1 employment authorization rules Curricular Practical Training Post Completion Optional Practical Training

1st 12 months Possible 17-month extension

Employer Obligations Added obligations to employ F-1 EAD holders E-Verify

H-1B cap-gap relief—available for those issued H-1B receipts

Other work options

F-1 work options-basics

Curricular practical training (CPT) Authorized by the DSO on the I-20 Employer specific Integral to F-1 curriculum

Post completion optional practical training (OPT) Recommended by the DSO EAD (employment authorization document)

card issued by the USCIS Not restricted to any employer

Related to field of study Cannot have more than an aggregate of 3

months of unemployment in first 12 month period

F-1 “STEM” graduates

What is STEM? Science, Technology, Engineering, Mathematics

Must review I-20 degree CIP code against STEM list

Currently in OPT based on a STEM degree

Some sciences won’t count

17 month STEM OPT extension

17 month extension of OPT = 29 months Employer must enroll in E-Verify

Recent F-1 workers may immigrate without going to H-1B status Nonimmigrant intent issues

Non-STEM F-1s are shut out from extension but still get initial12 month period

OPT STEM extension process

Student graduated from listed STEM program and currently on OPT

Student is offered employment with employer who is enrolled in E-Verify or will soon be

DSO recommends the OPT extension and properly annotated I-20 issued for STEM employment

Student submits Form I-765 with the employer’s E-Verify registration number and the new I-20 before current EAD expires

Timely filed extension authorizes student to work after EAD expires up to 180 days (new receipt rule)

Obligations on the F-1 student

For student granted STEM extension, must report within 10 days to DSO any change in: Legal name Residential or mailing address E-mail address Employer name Employer address

Report to DSO every 6 months with information above, even if no changes

Requirement to report continues if student receives cap-gap extension

Unemployment of more than 120 days over the total 29 month period places the individual out of status

Duration of reporting obligation

Until a change of educational programs (e.g., BS graduate in CS returns to school to complete an MBA)

Until a change of universities to complete a new degree in the same field, or

Until 17 month OPT extension period ends If granted a change of status—

reporting requirement ends

New employer obligations

Register for E-Verify and provide registration number to student

Reporting obligations Notify DSO within 48 hours of student

terminating employment before end of 17 month period

Hiring a student who is already in possession of a 17 month OPT extension Same reporting requirements and must be

registered for E-Verify Question: How would subsequent employer

know?

E-verify

MOU among DHS, SSA and employer Employer agrees to use E-Verify for all new hires

NOTE: this means that no current employees including the F-1s already employed will be included in E-Verify, ever. Unless pursuant to federal contractor rules

which may go into effect May 2009 E-Verify is controversial, as employer liabilities

are unclear E-Verify may be inevitable

Required for 17-month OPT extension Shortly to be required by DHS for all federal

contractors

E-verify: obligations

Display notices Provide to SSA & DHS contact info for

employer representatives (e.g., HR) Perform E-Verify on all new hires, not just

foreign nationals Promise to take refresher tutorials Abide by all I-9 procedures Use photo tool to verify certain I-9

documents (currently: EAD & Green Cards) NOTE: employers can still NOT insist

that certain documents be provided

E-verify: upshot

Don’t register for E-Verify until your corporate counsel has given explicit authorization to do so

Understand that hiring managers, recruiters and/or employees may push for registration without thought to the liabilities

Registration must be considered within the overall employment policies and the decision to register must be at the executive level & I-9 procedures need to be reviewed/changed to comply

That said, accept the fact that E-Verify as a universal requirement is probably inevitable

H-1B cap-gap relief

F-1 nonimmigrants whose H-1B cap cases are selected are eligible for continued status while

petition pending/or after approval work authorization up until the effective

date of the H-1B visa petition change of status must be granted

Authorizations disappear if H-1B visa petition denied or revoked or change of status denied

Despite cap gap relief, travel still risky during this time period

F-1 other options

Other nonimmigrant classifications citizens of a Free Trade country (Mexico, Canada,

Singapore, Chile or Australia) for TN, H-1B1, E-3 O-1 extraordinary ability Eventual L-1 intra-company transferees

Consider sponsoring individuals for permanent residency Caveat: PERM cases for recent graduates can be

very difficult if no experience can be required Nonimmigrant intent issues abound Impact of retrogression

Next webinar

May 27, 2009 9:30 am (pacific)

Alternatives to the H-1B category.  This webinar will address alternatives to the H-1B category. While there may not be options for all foreign national employees who were “shut out” of the H-1B cap, there are some alternatives that should be considered. Citizens of certain countries (e.g., Canada, Mexico, Chile, Singapore, & Australia) can often find work visas independent of the H-1B category. Further, certain international transferees, citizens of countries sharing nationality with foreign-owned corporations, and foreign nationals of “extraordinary ability” can also be eligible for visas independent of the H-1B.   (PHR/SPHR cert 1.5 hrs)

To register, please e-mail webinar@jackson-hertogs.com

Questions?