10/29/2008

Questions regarding permissible options and types of employment while on OPT may involve complex scenarios. Because of the requirements under the April 8, 2008 OPT rule, students should be cautious about accepting employment that may not be counted towards fulfilling their obligations and, consequently, may result in their exceeding the allowed number of days of unemployment and cause them to fall out of status. They also should be diligent about keeping detailed records of their employment, so that they can address questions that may arise in the future. 

Under the new provisions, one who is on OPT may have no more than a total of 90 days of unemployment during the regular one-year post-completion OPT period. Students who are eligible for an additional 17 months of OPT (for a total of 29 months) may have no more than a total of 120 days of unemployment during the 29-month OPT period. 

The International Student and Exchange Visitor Program (SEVP), which is under the jurisdiction of the U.S. Immigration and Customs Enforcement (ICE), provides guidance on what may constitute valid employment for OPT purposes.

With regard to all types of employment, it must relate to the student's program of study. In addition, in most, but not all cases, employment does not need to be full time. Students engaged in regular, paid employment; employment through an agency; or volunteer or unpaid internship should work at least 20 hours per week. 

Students in the performing arts may need to work for multiple, short-term employers and it may be difficult to document the exact number of hours worked. In such situations, students should keep a list of all engagements and the dates / durations of those engagements, and related proof, regardless of the exact number of hours worked, while on OPT.

Students on OPT may engage in work for hire pursuant to a contractual rather than an employment relationship. If the Department of Homeland Security (DHS) requests information about a student's employment in this situation, the student should be able to provide information on the nature and duration of all contractual agreements and the contact information of the contracting company. Once again, it is important to retain documentation.

Most commonly, students want to know if they can start their own businesses while on OPT. The SEVP explained that it is possible to be self-employed, as long as the nature of the business relates to the student's degree program and the student is actively engaged in this business. If self-employed, the student must work full time. While not specifically stated, this is likely to be an area in which the documentation of employment and the nature of the activities could be reviewed closely. So consider the risks and discuss the possibilities with your immigration counsel.