With the start of the new school year, U.S. colleges and universities are welcoming new and returning international students – albeit still not as many as there were pre-pandemic. The Student Exchange and Visitor Program (SEVP) released its annual report in April 2023 showing that while in 2022 there was a 10% increase in active F-1 and M-1 students from 2021, there were still 10% fewer international students in 2022 than there were in 2019. Of course, a global pandemic caused most of the world to shut down and heavily restrict international travel, but 2022 was the first full year that most international borders opened. In spite of students being able to cross borders to be admitted to schools, however, the number of international students coming into the US seems to be lagging. One factor may be the complex US immigration system, which restricts students’ ability to work while earning their degree and provides only limited options to continue working in the U.S. after graduation.
It is common for college students to pursue work opportunities while studying, whether for financial purposes or to explore career prospects, however, international students must be aware of the strict regulations around their employment activities while in the U.S. An F-1 student who works without authorization will violate their F-1 status, which may result in immediate termination of status with far-reaching negative implications for future U.S. immigration benefits.
International students can attend U.S. educational programs under several visas, (F, M, and J), F-1 students are the most common. As background, the F-1 visa allows international students to enroll in a full-time academic program of study or a language program. The institution must be approved by the SEVP which falls under Immigration & Customs Enforcement (ICE).
To receive an F-1 visa, the student must establish, among other things, that they have sufficient funds available to cover their tuition and support their stay in the U.S. The purpose of the F-1 visa is to study and therefore, if an F-1 student wishes to work, their options are limited, and they must adhere to strict rules. International students, university counsel, international office staff members, and DSOs (Designated School Officials) must be aware of the complex scenarios international students contend with for employment.
During their first year of study, F-1 students may not accept off-campus employment, but they can work in certain settings at their school, such as the school’s library or international student office, or at an educationally affiliated off-campus location (like an affiliated lab). On-campus employment for a commercial business is permitted so long as it provides direct services for students, for example, an on-campus coffee shop or a bookstore operated under contract with the university. On-campus employment is limited to 20 hours per week and must not displace a US worker. Full-time employment is permitted only while school is not in session.
After the first full-time academic year, F-1 students may participate in off-campus employment, which must be authorized by the school and, in most cases, also by US Citizenship & Immigration Services (USCIS). The authorization for off-campus employment may be based on training – Curricular Practical Training (CPT) or Optional Practical Training (OPT) – which relates to the student’s academic course of study. It is also possible to obtain off-campus employment authorization based on economic hardship or emergency situations, such as that granted to Ukrainian students due to the current war in Ukraine.
The CPT option authorizes work that is related to the student’s area of study and constitutes an integral part of the curriculum, such as an internship, practicum, or independent study. CPT is not available for students engaged in English as a second language program. CPT is authorized by the school’s designated official, on a part- or full-time basis, and must occur during the program of study. Graduate students in certain programs may receive CPT authorization before they complete one year of study.
The OPT option authorizes work that is related to the student’s area of study, but it may occur either before or after the program is completed. F-1 students tend to reserve OPT for employment after they complete their program to extend their stay in the U.S. F-1 students are eligible for 12 months of OPT per degree level and those in a STEM field are eligible for an additional 24 months. Any OPT used during the program of study is subtracted from the 12-month allowance of post-completion OPT. It is also important to note that if an F-1 student utilizes 12 months of full-time CPT during their program, they will forfeit their eligibility for post-degree-completion OPT. The school’s DSO must authorize the OPT and the student must then obtain an Employment Authorization Document (EAD) from USCIS before starting employment.
If, however, an F-1 student finds themselves in economic distress, they may apply for off-campus employment authorization. The student must be experiencing an economic hardship caused by an unforeseen financial condition beyond the student’s control, like the loss of financial aid/on-campus employment, significant change in the exchange rate/value of their home country currency, unexpected increase in tuition, living costs or medical bills, unexpected changes in the financial state of the student’s source of support, or other unexpected and substantial expenses. The F-1 student must first request authorization from the school and then apply for the EAD with USCIS and must receive the card before starting work. This type of off-campus employment is limited to 20 hours per week while school is in session.
There are also instances when the Department of Homeland Security (DHS) provides Special Student Relief (SSR) to F-1 students by relaxing or suspending certain F-1 regulatory requirements, including employment restrictions, based on emergent circumstances in the student’s home country. These circumstances may include war, famine, military conflict, economic crisis, natural disasters, and similar situations. If an F-1 student from a designated country experiences severe economic hardship because of the circumstances in their country, the student may request certain benefits, including authorization for off-campus employment, increased hours of employment, reduction in the required course load for full- time student status.
Eligibility for SSR relief is reserved for F-1 students who are citizens of the designated country and resided in the United States at the time of DHS designation. Before starting work, the F-1 student must request authorization from the school and then apply for the EAD with USCIS. Countries designated for SSR are often also designated for Temporary Protected Status (TPS), which offers employment authorization, but an F-1 student must carefully understand the implications of pursuing TPS employment if they wish to maintain F-1 status.
International students who travel to a foreign country to pursue an educational dream naturally face challenges in navigating their academic path in a foreign land. For those studying in the US, it is especially important for these students to educate themselves on the regulations that govern their activities, especially when pursuing an employment opportunity while in school because a deviation from the regulations may impose unforgiving implications. International students are essential to U.S. universities for several reasons like diversity, economic growth, and post-graduation labor. If the next annual report from SEVP doesn’t reflect continued growth to surpass pre-pandemic levels, the U.S. may need to examine how regulatory restrictions are contributing to the decreased levels of international students coming to the U.S.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the September 14, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.