By: Patricia Gannon, Esq. and Marcela Bermudez, Esq.
When preparing H-1B cap filings this season, increased federal enforcement activity has raised the stakes for every aspect of complying with immigration visas, particularly employees currently working on F-1 visas with Optional Practical Training (OPT) authorization.
OPT permits F-1 international students to work in the U.S. for up to 12 months in a job directly related to their field of study. Students with OPT authorization in qualifying STEM fields may apply for an additional 24-month extension, giving them up to 36 months of permitted work in the U.S. For OPT to be valid, the job must be supervised, the work must connect directly to the student’s degree, and the employer must meet specific immigration requirements.
Why Enforcement Is Escalating
Immigration and Customs Enforcement (ICE) has made F-1 and OPT compliance a priority. ICE recently reported uncovering potential more than 10,000 cases of fraud tied to the student visa programs. The violations included students working without proper supervision and arrangements where supervision was provided by entities located outside the U.S., which does not satisfy federal requirements.
ICE has stated that misuse of the foreign student employment framework raises compliance and national security concerns, which likely means that enforcement will remain aggressive.
What Employers Need to Verify Before Filing
Employers who plan to file an H-1B change of status on behalf of an F-1 student in OPT must be confident that the student’s current employment meets all program rules. A weak OPT record at the time of H-1B filing can create problems that extend well beyond the cap petition itself.
Before filing, employers should confirm the following:
- The student’s OPT employment is supervised by a U.S.-based supervisor who meets regulatory standards. Remote or overseas supervision arrangements do not qualify.
- The job duties performed under OPT relate directly and clearly to the student’s degree. Employers should be prepared to document this connection in specific, concrete terms.
- All OPT documentation is current, accurate, and complete, including student’s Form I-20, employer information on file with the student’s school, and any STEM extension paperwork.
The Risk of Moving Forward Without a Compliance Review
Filing an H-1B cap petition on behalf of a student whose OPT employment does not meet regulatory standards puts the employer and the student at risk. USCIS reviews the underlying status when adjudicating change-of-status petitions. Issues with OPT compliance can affect the outcome of the H-1B filing and create broader immigration consequences for the student.
Employers who work with F-1 students across multiple roles or departments should conduct an internal review of all active OPT arrangements now, before cap season deadlines arrive.
A Straightforward Checklist for Cap Filings Involving F-1/OPT Workers
When conducting cap filings involving F-1/OPT workers, make sure to:
- Review supervision arrangements for every OPT employee. Confirm the supervisor is U.S.-based and actively involved.
- Document the direct connection between the student’s degree and their current job duties. Generic descriptions are not sufficient.
- Verify all I-20 information is accurate and up to date with the student’s Designated School Official (DSO).
- For STEM OPT extensions, confirm the employer is enrolled in E-Verify and that the formal training plan is in place and being followed.
- Gather this documentation before initiating the H-1B filing.
Staying Compliant During H-1B Cap Season
For F-1 students on OPT, the compliance requirements tied to their current status carry over into the H-1B process. Employers and students who take the time to review their OPT documentation now are in a far stronger position when the H-1B petition is filed.
If you have questions about H-1B cap filings, OPT compliance, or F-1 student employment requirements, the immigration attorneys at Greenspoon Marder are available to help you assess your situation and prepare a complete, defensible filing.