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What Employers need to know about Hiring International Students
Many employers are concerned about liability related to the employment of international students in the United States due to changes in federal laws governing non-citizens, particularly the Immigration Reform and Control Act of 1986 (IRCA) and the Immigration Act of 1990 (IMMACT90).
Getting permission for international students to work in the U.S. is not as difficult as many employers think. Most international students are in the U.S. on non-immigrant student visas (F-1 and J-1), and these international students are eligible to accept employment under certain conditions.
Practical training for F-1 students
Practical training is a legal means by which F-1 students can obtain employment in areas related to their academic field of study. Students, in general, must have completed one academic year (approximately nine months) in F-1 status and must maintain their F-1 status to be eligible for practical training. There are two types of practical training:
Optional Practical Training (OPT) must be authorized by the United States Citizenship and Immigration Services (USCIS) based on a recommendation from the designated school official (DSO) at the school which issued the form I-20, a government document which verifies the student's admission to that institution. The term "optional" means that students can opt to use all or part of their total practical training allotment of a maximum of 12 months.
Students who have received OPT permission will be issued an Employment Authorization Document (EAD) by the USCIS. Their name, photo and valid dates of employment are printed on the EAD. Employers should note that the average processing time for USCIS to issue the EAD is two or three months, and students may begin employment only after they receive the EAD which will indicate the starting and ending dates of employment.
Curricular Practical Training may be authorized by the institution (NOT by USCIS) for F-1 students participating in curricular-related employment such as cooperative education, work study, practicum and internship programs. Authorization is written on the back of the I-20 student copy and will include the name of the company, beginning and ending date, and signature of the designated school official (DSO). Since each institution has different policies related to curricular-related employment, students should speak to the DSO at their institution.
Processing time for the authorization of CPT varies at each institution. Employers should check with the student's institution for an approximate turn-around time. International students on F-1 visas are eligible for both curricular practical training before finishing their studies, as well as 12 months of OPT. However, students who work full-time on curricular practical training for one year or more are not eligible for OPT. Those engaging in OPT prior to graduation may work for a maximum of 20 hours per week during their school term and 40 hours during their break period.
Academic training for J-1 students
Exchange students enter the U.S. on a J-1 visa. Practical training is called "academic training" for J-1 visa students. International students on J-1 visas are eligible for up to 18 months of academic training. Post-doctoral students are permitted three years. Some J-1 program participants are also allowed to work part-time during the academic program. Academic Training is granted in the form of a letter by the Responsible Officer (RO) or Alternate Responsible Officer (ARO). Students should consult with the RO or ARO at their institution.
Minimal paper work for the employer
Fortunately, there is little paperwork for an employer who hires F-1 or J-1 students. All paperwork is handled by the students, the school, and USCIS. For curricular practical training, the school will make a notation on the students' copy of the I-20 form indicating that curricular practical training has been authorized, and specifying the duration and place of employment. Students authorized for optional practical training are required to apply to USCIS (through the school) for an Employment Authorization Document (EAD).
Continuing employment after the practical/academic training period
Federal regulations require that employment terminate at the conclusion of the authorized practical or academic training. However, students on an F-1 visa, or students on a J-1 visa who are not subject to a two-year home residency requirement, may continue to be employed, if they receive approval for a change in visa category-usually to H-1B. Students must have a minimum of a bachelor's degree in order to qualify for H-1B status. Individuals may work in the United States for a maximum of six years under an H-1B visa. This visa is valid only for employment with the company that petitioned for them. They must re-apply to USCIS if they wish to change employers. As soon as the initial job offer is made, they should petition for an H-1B visa if employment is likely to extend beyond the practical training period.
For your reference
The Code of Federal Regulations (CFR) Title 8 and Title 22 citation numbers for regulations governing practical training are as follows:
Frequently Asked Questions
Isn't it illegal to hire international students because they do not have a green card?
Even if it's legal to hire international students, won't it cost a lot of money and involve a lot of paperwork?
How long can international students work in the United States with their student visa?
Don't international students need work authorization before I can hire them?
What does the work authorization look like?
What if I want to continue to employ international students after their work authorization expires?
Doesn't an employer have to prove that international students are not taking jobs from a qualified American?
Normally, if the internship involves no form of compensation and is truly voluntary, the students may volunteer without having to do any paperwork with USCIS. If, however, the internship provides a stipend or any compensation, students must obtain permission for practical training or academic training prior to starting their internship. Students should check with their employers to ensure that the company is allowed by law to offer unpaid internships.
The information contained herein is for the use of the Santa Clara University community, and should not be used as a source of information for making legal decisions regarding employment. A licensed practicing attorney should be consulted for professional legal counsel.