The U.S. Immigration and Custom Enforcement’s (“ICE”) Student Exchange Visitor Program (SEVP) recently released numerous draft guidance regarding on-campus and off-campus employment authorization in the F-1 program. The draft guidance does not directly address issues with Curricular Practical Training (CPT) or Optional Practical Training (OPT). Because this guidance is in Draft, it does not become effective immediately. Instead, it will only become effective at the end of the stakeholder comment period, review of the comments by SEVP and then the publishing of final guidance by SEVP.

The following are some highlights from the various guidances:

  1. An F-1 student must receive authorization from a Designated School Official (DSO) before commencing on-campus employment. The DSO must record the authorization in the student’s Student Exchange Visitor Information System (SEVIS) record. A DSO must terminate the SEVIS record of a student employed without authorization. A student who loses or has his/her Employment Authorization Document (EAD) card continues to have employment authorization until the expiration date of the lost or stolen EAD card. The guidance states that the student’s employment authorization is verifiable in SEVIS. However, the guidance does not emphasize that verification in SEVIS is not a substitute for a valid EAD card for  Form I-9 purposes. The guidance does confirm that after a student applies for a replacement EAD card, he/she may use the receipt for the replacement Form I-765 as evidence of employment eligibility for up to 90 days. After 90 days, the guidance states that the USCIS may issue an interim EAD card if the adjudication of the replacement EAD application is delayed. However, although provided in the regulations, the USCIS is not currently issuing interim EAD cards.
  2. A student who has a pending application for reinstatement may not initiate new employment or continue existing employment until the application is approved. However, a student who has been authorized for CPT, may continue with the CPT because it is an integral part of the student’s program of study. The guidance states that a student who wants to apply for a Social Security Number (SSN) will need to obtain a  letter from the DSO on school letterhead stating the student’s name, current nonimmigrant status, prospective employer and type of employment. It also states that the student has to obtain a letter of employment from the employer consistent with the DSO letter. However, the guidance does not state that this is not required when:
    1. The student has been authorized for CPT; and
    2. The student has received an EAD card based upon Optional Practical Training (OPT).
  1. A student may not have concurrent employment while school is in session, except CPT which does not impact a student’s eligibility for concurrent employment.
  2. An F-1 student remains in Active SEVIS status while enrolled in study abroad. A DSO may count a student’s time spent studying abroad towards fulfilling the one full academic year requirement if the 1 student was enrolled in a full course of study at the school that issued the current Form I-20 and maintained an Active SEVIS record while studying abroad.
  3. An F-1 student may continue on-campus employment or CPT following a temporary absence (i.e. more than thirty days but less than five months) if the student has a valid F-1 visa, has not reentered the United States on a new SEVIS ID number, is still enrolled in the same program of study at the same SEVP certified school whose DSO authorized the employment and has not changed educational level, has a properly  endorsed travel authorization on his/her SEVIS Form I-20, is otherwise admissible by U.S. Customs and Border Protection (CBP), and if for CPT, the student is able to complete the applicable coursework in  that academic term. An F-1 student cannot continue off-campus employment or pre- completion OPT following a temporary absence.
  4. The guidance states that students should avoid travel after their program end date with a pending post- completion OPT application in order to avoid complications. Some of the complications stated as examples are an application for post-completion OPT may be considered abandoned by the USCIS if the student is not present in the United States. Another example is that students may forfeit their employment authorization if they are not present in the United States before the practical training start date. However, both of these examples are not supported by current USCIS regulations or guidance.
  5. Unlike a temporary absence, the guidance confirms that an F-1 student employed off-campus or through pre-completion OPT may continue such employment while taking an annual vacation from school.  
  6. The guidance confirms that SEVP considers starting a business as self-employment and if the business is located in the United States, doing so is only allowable as OPT. The guidance also confirms that income from investments and gambling is not considered employment.
  7. The guidance provides definitions for on-campus employment, including what is direct student services and what is educationally affiliated with the school. The guidance also restricts on-campus employment at an educationally affiliated off-campus location to within a reasonable commuting distance (i.e. within 75 miles) of the school’s premise.he guidance confirms that SEVP considers starting a business as self-employment and if the business is located in the United States, doing so is only allowable as OPT. The guidance also confirms that income from investments and gambling is not considered employment.
  8. The guidance also allows for on-campus employment at a different campus of the same school as long as  both campuses of the school are listed on the Form I-17 and the campus is within reasonable commuting distance (i.e. within 75 miles) of the campus at which the student normally attends classes. Additionally, there must be oversight of the student at the different campus.
  9. The guidance requires DSOs to terminate a student’s SEVIS record if the student violates the regulatory limitations on the number of hours of weekly employment.
  10. A student may only commence on-campus employment after notifying the DSO and receiving a letter from the DSO to obtain an SSN as needed.
  11. The guidance confirms that on-campus employment does not extend into the 60 day grace period before the student departs the United States, unless the student is starting a new program of study at the same school or the student is transferring to a new school and has not reached the transfer release date as entered in SEVIS.
  12. The guidance confirms that on-campus employment may continue while a student is applying to change his/her status from F-1 status to another status as long as the USCIS has not adjudicated the Form I-539 and the student has not reached his/her program end date.
  13. The guidance states that a student who has been authorized for severe economic hardship may only engage in off-campus employment if on-campus employment or practical training opportunities are unavailable or if they are insufficient to overcome the student’s unforeseen financial hardship. The off- campus employment is not required to be educationally affiliated with the school. However,  the employment must be within reasonable commuting distance (i.e. within 75 miles) of the school. The guidance states that a DSO should document a student’s severe economic hardship and oversee the impact of employment on the hardship. Although not required, the guidance states that a DSO may document this information in the student’s SEVIS record.

Additional information about the implementation of the new employment guidance in the F-1 program will be available in our firm’s future Immigration Updates when it becomes available.