Employment and International Students: A Comprehensive Guide to Visa Status and Employment Regulations There are many questions about employment in the United States and the international student. The United States Government has very specific regulations dealing with these issues. This guide should serve only to give a basic understanding. Any further questions or specific clarifications should be directed to United States Citizenship and Immigration Services (http://uscis.gov) or the West Virginia University Office of International Students and Scholars (111 Elizabeth Moore Hall, 293-3519; http://www.wvu.edu/~oiss). There are two types of student visas recognized at the University level. The F-1 Visa is for non- immigrant students completing academic studies. The “M” Visa is for non-academic or vocational studies. The “J” Visa is strictly for exchange or study abroad students (i.e. students enrolled in another university or college not located in the United States and is not completing a degree from West Virginia University). Remember, simply having a social security card/number does not mean that one is permitted to work off-campus. The following sections will outline the regulations pertaining only to students seeking a degree from West Virginia University. F-1 Visa Typically students with an F-1 visa are NOT permitted to work OFF-CAMPUS. When applying for the student visa, a person must prove s/he has adequate financial support for the ENTIRE length of academic pursuit. Applicants must also prove that sufficient funds are or will be available from an identified and reliable financial source to defray all living and school expenses during the entire period of anticipated study in the Unites States. Specifically, applicants must prove they have enough readily available funds to meet all expenses for the first year of study, and that adequate funds will be available for each subsequent year of study. (U.S. Department of State-Bureau of Consular Affairs-Visa Services; http://travel.state.gov/visa;foreignstuden.html) ON-CAMPUS EMPLOYMENT This is not to be interpreted that under no circumstances may an international student not hold paid employment for the entire length of stay. An international student may be employed ON-CAMPUS. On-campus employment is defined as “…employment must be either performed on the school’s premises, (including on-location commercial firms which provide services for students on campus, such as the school bookstore or cafeteria), or at an off-campus location which is educationally affiliated with the school. Employment with on-site commercial firms, such as a construction company building a school building, which do not provide direct student services is not deemed oncampus employment.”. An F-1 student may work full- time on-campus when school is NOT in session or during an annual vacation. An F-1 student may, however, work on campus full- time when school is not in session or during the annual vacation. A student who has been issued a Form I-20 AB to begin a new program in accordance with the provision of 8 CFR 214.3(k) and who intends to enroll for the next regular academic year, term, or session at the institution which issued the Form I-
20 A-B may continue on-campus employment incident to status. Otherwise, an F-1 student may not engage in on-campus employment after completing a course of study, except employment for practical training. An F-1 student may engage in any on-campus employment authorized under this paragraph which will not displace United States residents. In addition, a new F-1 visa student may not begin on-campus employment more than 30 days prior to the actual start of classes. OFF-CAMPUS EMPLOYMENT There are special circumstances recognized that will allow a student to obtain employment OFFCAMPUS. Part-time employment (no more than 20 hours per week) during the school year and fulltime employment (40 hours a week) may be obtained when the following criteria have been met. A. Severe Economic Hardship F-1 status has been maintained for one full academic year Good standing and full course of study is being maintained. Acceptance of employment will not interfere with the carrying of a full course of study. The student can demonstrate that on-campus employment is unavailable or insufficient. There has been a demonstrated need that the employment is necessary to avoid severe economic hardship due to unforeseen circumstances beyond the student’s control. 6. Approval from the Office of International Students and Scholars to apply for an Employment Authorization Document is required. (The recommendation from West Virginia University to allow off-campus employment is mandatory) “For off-campus employment based on severe economic hardship, the current rules require that the student apply to the Service based on a favorable recommendation of the DSO” (United States Citizenship and Immigration Services; http://uscis.gov) 7. Applications are submitted to the Office of International Students and Scholars. Eligibility and application steps can be found at http://www.wvu.edu/~oiss/work_hardship.htm. B. Curricular Practical Training (CPT) 1. Above criteria 1-3 met 2. Must be related to major curriculum 3. If not required by major curriculum, the student is only permitted to work no more than 20 hours per week. 4. If it is required by the major curriculum (i.e. practicum or internship), then the student is permitted to work 40 hours per week. NOTE: If a student works 40 hours per week, then that time will be subtracted from the student’s Optional Practical Training period. If a student works more than one full year full-time, then s/he is ineligible for OPT. 5. If the required off-campus work is the only course left in the student’s area of study, then the student is permitted to work out- of-state. 6. There is no time limit on part-time employment; however, full-time employment will decrease or eliminate (one year of full-time) eligibility for Optional Practical Training. 1. 2. 3. 4. 5.
7. Research hours are NOT permitted. 8. Is directly related to a particular position where the employer has offered a position. 9. The student must be employed while enrolled as a full-time, degree seeking student. NOTE: A student may obtain permission to register less than full-time during their graduating semester. 10. The student must have prior approval from the Office of International Students and Scholars (DOS). C. Optional Practical Training (OPT) 1. Same as CPT 2. The position must be related to the student’s major; however, is not part of the curriculum. 3. This training is typically done after the completion of a degree. NOTE: If a student activates this option before graduation, then the student must maintain full-time student status in addition to full-time employment. 4. One year is permitted per person, per degree level. NOTE: For example, a student may work for 1 year after the completion of a Bachelor’s degree then go back to school for a Master’s degree. Upon completion of the Master’s degree, the student may again utilize the OPT and has the option of repeating the cycle if obtaining a Doctorate. The OPT may NOT be used if a second degree at any level is sought. 5. OPT may lead to H-1 or other immigration status. D. Employment Authorization Document 1. The EAD is required for all of the listed off-campus employment options. 2. Application for the EAD must be approved by the Office of International Students and Scholars. 3. There is an application fee and no guarantee that an EAD will be approved. (United States Citizenship and Immigration Services; http://uscis.gov/graphics/howdoi/ead.htm) 4. The application process may take from 6 weeks to 6 months, so the student must plan early. 5. If the United States Citizenship and Immigration Services does not approve or deny an EAD application within 90 days, an interim EAD may be requested. 6. If an EAD application is denied, a letter will be issued and is not permitted to be appealed to a higher authority. To have an EAD decision appealed, one must submit a motion to reopen or a motion to reconsider with the office that made the negative decision. A motion to reconsider must state new facts and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of the law or USCIS policy. It must further establish that the decision was incorrectly based on evidence in the file at the time the decision was made.
E. H-1 Visa 1. The H-1 Visa is a non-resident, non- immigrant, temporary, off-campus, long-term employment visa. 2. This visa requires a sponsoring United States employer. 3. The length of appointment varies from 6 months to a maximum of 3 years. Visa extensions may be approved for up to 6 years (total duration of stay). 4. Several criteria must be met for an H-1 Visa to be issued. a. There are several documents to be filed with INS and the Department of Labor by the sponsoring employer and alien worker (Labor Condition Application (ETA 9035), H-1B petition (INS form I-129), and H-1B visa application to Consulate abroad). b. The employer must prove that the position qualifies as a “specialty occupation” “A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.” (http://uscis.gov/graphics/howdoi/h1b.htm) c. In addition to conducting good faith recruitment of United States workers, the employer is required to have offered the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B nonimmigrant. This means that an employer must do an exhaustive, documented search to employ a U.S. worker before hiring a non- immigrant. (http://a257.g.akamaitech.net/7/257/2422/04nov20031500/edocket.access.gp o.gov/cfr_2001/aprqtr/20cfr655.739.htm) d. There is a limit to the number of H-1B visas awarded each year. To obtain a visa, this limit must not have been met for the fiscal year in which the application is submitted. 5. The process for filing for an H-1 visa requires documentation from both the international as well as the employer. The process for filing can be found at http://workforcesecurity.doleta.gov/foreign/h-1b.asp. 6. The application process may take from 6 weeks to 6 months, so the students will need to apply for the H1 Visa BEFORE their OPT or CPT period runs out.