Monthly Archives: May 2010

What are the rules on OPT and unemployment?

The law governing OPT rules and periods of unemployment are found in 8 CFR 214.2(f)(5),(10), (11), and (12) and 247a12(b)(6)(iv) and (v) and SEVP Policy Guidance 0801-01.  Below are the key points relating to the OPT rules of unemployment:

  • As of April 8, 2008, students granted post-completion OPT can only accrue up to ninety days of unemployment.
  • Unemployment of ten days or fewer, when changing jobs, does not need to be reported to OIS and does not count towards the ninety-day total days of unemployment.
  • Students whose employers filed timely H-1B petitions and were granted cap-gap coverage are permitted a total of ninety days of unemployment for the entire period of OPT.
  • Days spent outside the United States while unemployed count towards the ninety days of permitted unemployment.
  • If a student on OPT nears the 90th day of unemployment, it would be best to make plans to depart the United States, apply for a change of status to a different status or make preparations to begin a new degree program.  Action needs to be taken early enough so that by the end of the 90th day of unemployment, the student has another option already in progress.  DHS has stated that an F-1 student who is unemployed for more than ninety days will be considered to be out of status.
  • OIS will not take any adverse action on a student’s SEVIS record regarding unemployment.  OIS’s responsibility is to report interruptions in employment that the F-1 student reports to OIS.  Failure to report that information or accruing more than ninety days of unemployment may result in DHS’ not approving future benefits or requests.

For students who are not on STEM (master’s degree in science) extensions, this employment may include:

  • Paid employment.  Students may work part-time (at least 20 hours per week when on post-completion OPT) or full-time.
    • Multiple employers.  Students may work for more than one employer, but all employment must be related to their degree programs, and, for pre-completion OPT, cannot exceed the allowed per-week, cumulative hours.
    • Short-term, multiple employers (performing artists).  Students, such as musicians and other performing artists, may work for multiple, short-term employers (gigs). The student should maintain a list of all gigs as well as their dates and duration.  If requested by DHS, students must be prepared to provide evidence showing lists of all gigs.
    • Work for hire.  This is also commonly referred to as 1099 employment in which an individual performs a service based on a contractual relationship rather one based on employment.  If requested by DHS, students must be prepared to provide evidence showing the duration of the contractual periods as well as the names and addresses of the contracting companies.
    • Self-employed business owner.  Students on OPT may start a business and be self-employed.  In this situation, the student must work full-time.  The student must also be able to prove that he has the proper business licenses and is actively engaged in a business related to his degree program.
    • Employment through an agency.  Students on post-completion OPTs must be able to provide evidence showing they worked an average of at least twenty hours per week while employed by the agency.
  • Unpaid employment.  Students may work as volunteers or unpaid interns, but only in jurisdictions where it does not violate any labor laws.  The work must be at least twenty hours per week for students on post-completion OPTs. 

Can a US citizen spouse legalize an undocumented spouse in the US?

This post I receive from a blog reader today.  A US citizen asked me whether she can get a green card for her husband based on their marriage.  Her husband crossed the US border without being admitted sometime in 2003.  Now that they are married the client wants to legalize her husband. 

Based on your facts it appears that your husband is not eligible for legalization under INA Section 245(i) which allows certain immigrants present in the United States on April 21, 2001 with pending employment or family based petition to petition for adjustment of status while in the United States.  Based on the current law, your husband needs to process his documents through United States Embassy in Mexico.  He needs to seek a waiver for illegal entry and unlawful presence in United States.  Once he leaves for Mexico he will be subject to a ten year bar.  As a petitioner and his United States citizen spouse you will need to show that you are suffering extreme hardship because your husband is not in the United States. Although Form I0-601 is deceptively easy, preparation of the documents in support of the waiver is usually time consuming, document intensive and definitely requires expertise of an immigration lawyer. 

Evita Tolu, Esq.
Immigration Law Group LLC

9378 Olive Blvd., Ste. 325

St. Louis, MO 63132

 (314) 872-3988 telephone-general number
(314) 872-9556 facsimile