Here’s another edition of “Dear 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.”
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Dear Sophie:
I’m graduating this fall with a Bachelor’s degree in molecular and cell biology. I hope to find a way to maintain my F-1 status to graduate. After graduation, I’m planning on applying for OPT. I really want to work at a biotech startup. What options do I have to remain in the U.S. after OPT ends?
—Bright-Eyed in Berkeley
Dear Bright-Eyed,
Stay the course — you’re almost at the finish line. Even with everything going on, if you can maintain your F-1 status for the last semester, you should still be able to get OPT and STEM OPT and possibly a green card. As you know, OPT enables international students on F-1 visas to work for 12 months in their field of study after completing at least one academic year of studies. Like you, most students choose to wait to begin OPT after graduation. Many companies are starting to take the pledge to support international students.
F-1 Students have been in the news a lot over the past few weeks with the online class rule. Great news – at the time of this writing, it appears the administration has rescinded this policy and we are returning to the status quo. For a general overview about Optional Practical Training (OPT), as well as Curricular Practical Training (CPT) and STEM OPT Extension for international students on F-1 visas check out my recent podcast.
Under OPT, you can work, start your own company or volunteer in your field of study. If you plan to start working after you graduate, you can apply for OPT up to 90 days before you complete your studies or up to 60 days afterward. Although a job offer is not required when you apply, OPT only allows 90 days of unemployment. Unpaid volunteer work or an internship of at least 20 hours per week in a student’s area of study will not count against the 90 days of unemployment.
When considering when to apply for OPT, keep in mind that U.S. Citizenship and Immigration Services (USCIS) is taking anywhere from 2.5 to 5 months to process an OPT work permit, known as an Employment Authorization Document (EAD). You cannot start working until you have a work permit in hand.
After you begin working on OPT, if you realize the job is not a good fit or a better opportunity comes along that could lead to a permanent position with an employer willing to sponsor you for an H-1B visa, you can change employers under OPT. You just need to notify USCIS and your college or university of the change within 10 days.
Once your OPT EAD expires, you will have a 60-day grace period to prepare to return to your home country, change your immigration status in the U.S. or begin a new degree program. During this 60-day grace period, you cannot work.
If your OPT employer is willing to sponsor you for an H-1B visa, the company should register you for the H-1B lottery in March. If your OPT employer is an institution of higher education, a nonprofit entity affiliated with an institution of higher learning or a nonprofit or government research organization, your employer is exempt from the cap on H-1B visas and therefore spared from the H-1B lottery. Exempt employers can submit an H-1B petition on your behalf at any time.
If you founded a startup under OPT, your startup could sponsor you in theory. However, in practice, that’s difficult. You and your startup would have to meet very stringent requirements for your startup to sponsor you for an H-1B. For instance, one of the requirements for an H-1B visa is a valid employer-employee relationship. To achieve that, you would need to take steps, including reducing your equity stake in your startup to less than 50%. In addition, someone at the company would need to be in a position to oversee your work and have the authority to fire you. It’s especially important to work with an experienced immigration lawyer if you chose this route.
As a backup, if you are not selected in the H-1B lottery, you could apply for a STEM OPT Extension. Your STEM (science, technology, engineering and mathematics) field of study makes you eligible to apply for this 24-month extension of work authorization.
Under STEM OPT, you can continue working for your OPT employer — unless you were self-employed under OPT — or find a new one. As with the OPT program, you can change employers under STEM OPT. Generally, the requirements for STEM OPT include:
- A job offer.
- The position is at least part-time, requiring a minimum of 20 hours of work per week.
- You will receive formal training in the position.
- The employer is enrolled in and uses E-Verify.
- An employer-employee relationship exists, which means the employer oversees your work, pays you wages and has the ability to fire you.
With the 24-month extension, your STEM OPT employer will have the opportunity to sponsor you for an H-1B visa in the annual H-1B lottery for two more years.
If you are approved for an H-1B visa, but your work start date is set for after your F-1 OPT or STEM OPT work permit will expire, you can seek a cap-gap extension. This regulatory provision allows eligible F-1 visa holders to bridge the gap between the end of F-1 status and the start of H-1B status, enabling those individuals to remain uninterrupted in the U.S.
You’ve got this!
Sophie
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.