Caution to Students Searching for OPT Employers

A student in F-1 status who has been granted optional practical training (OPT) may normally have no more than a total of 90 days of unemployment during the initial one-year post-completion OPT period. On occasion, the Murthy Law Firm hears from students on OPT who are concerned about complying with the employment requirements. The accounts that lead to these concerns tend to fall along the same lines. The student finds a position that, on its face, appears to comply with the OPT requirements. After a while of working in the position, however, it becomes apparent that the employer may be engaged in some form of fraud. The impacts that such employment with these companies can cause, and how to avoid employment with these types of companies in the future, are discussed here for MurthyDotCom readers.

Background on OPT Unemployment Rules

As stated, students using the initial 12 months of OPT may have no more than a total of 90 days of unemployment. If the student is granted a 24-month STEM OPT extension, the individual is eligible for up to 150 days of unemployment in the aggregate. During the initial period of OPT, volunteer work and self-employment may be allowed. But this generally is not possible during the 24-month STEM OPT extension period. If the F-1 student exceeds the unemployment limits or works in a position that does not meet the OPT requirements (e.g., works in a volunteer position during the STEM OPOT period), this generally would be viewed as a violation of status.

How Do Students Unknowingly Fall into the Trap of Fraudulent Employers?

Although unpaid work may be permissible during the initial period of OPT, this is normally not allowed during the STEM OPT extension period. Yet, over the years, certain unscrupulous “employers” have sought to prey on F-1 students on OPT and STEM OPT who have been laid off or otherwise find themselves in desperate need of a qualifying employer to avoid exceeding the unemployment limits. These companies charge such students a hefty upfront fee, claiming it is required for some sort of initial training, enticing these students to join with promises of high-paying work to come. They offer assurances that all is in full compliance with the OPT/STEM OPT requirements and, given the pressure these students feel to find work, they accept the terms.

In short order, these students realize that the employment is a sham. The employer offers little-to-no training. The company’s promises of well-paying work as a contractor never materializes. The only thing provided is an employment verification letter on the company’s letterhead to make it appear on paper that the student is compliant with the OPT/STEM OPT requirements.

Consequences of Employment by Fraudulent Companies

The U.S. Citizenship and Immigration Services (USCIS) and other immigration agencies have cracked down on F-1 students who have “worked” for such companies while on OPT or STEM OPT. In many cases, the government has deemed that these students were engaged in fraud, making them permanently inadmissible and removable (i.e., deportable). The Murthy Law Firm has seen instances of foreign nationals seeking entry to the U.S. in H1B or another status, only to be greeted by a U.S. Customs and Border Protection (CBP) officer because of their previous employment with one of these fraudulent employers. The CBP officer proceeds to interrogate the individuals about their earlier work, and ultimately issues a notice and order of expedited removal. This results in an automatic 5-year bar to the United States.

Potentially Fraudulent Employers: What to Look Out For

Students should be aware that such exploitative companies exist and remain vigilant for signs. A student considering employment with a company exhibiting any of these characteristics can contact the Murthy Law Firm, or the university’s designated school official (DSO), to ensure that the employment genuinely complies with the OPT requirements:

• The job is unpaid.
• The only actual work to be performed is online training.
• The employing company is also acting as a staffing company and expects payment in exchange for staffing services.
• The company expects the student to pay for an offer letter.

If a company ever asks a student to pay for an offer letter, the student should not, and should contact the DSO. If the job exhibits characteristics 1-3, it does not inherently mean that the company is fraudulent, but it should be a sign for the student to ask more questions and contact the DSO or immigration counsel.

Possible Options

Unemployment in OPT status can be stressful and can lead students to incautiously gain employment with fraudulent companies looking to exploit students’ situations. This can cause the students serious immigration impacts down the road. Therefore, students should look out for potentially fraudulent employers and contact immigration counsel or the DSO to determine if the employment opportunity complies with all F-1 OPT requirements.

If you are now, or have previously, worked for an employer that engaged in the activities described here, there may be options to mitigate the immigration harm this may cause. The Murthy Law Firm is available to consult in these matters.

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