Under the changes to the OPT regulations effective April 8, 2008, "F-1 status is dependent upon employment." Students on regular post-completion OPT and students who have OPT extended due to the cap gap provisions are subject to a 90 day limit on unemployment, and students who receive a 17-month STEM OPT extension are only given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.
While the current SEVP Policy Guidance and SEVIS functionality do not fully address what happens if a student accrues more than the allowed days of unemployment, in e-mails and NAFSA conference presentations SEVP has provided some guidance to clarify the role of DHS and DSOs.
DHS Not Systematically Terminating for Unemployment
While DHS has the authority to terminate a student’s record on the basis of exceeding the regulatory limits on unemployment, the inability of SEVIS I to track days of unemployment means that DHS cannot automatically or systematically terminate for more than 90/120 days of unemployment at this time. It is true that DHS could terminate a student’s SEVIS record after investigating and determining that a student has exceeded the limit on days of unemployment.
SEVP Policy OPT Guidance [7.4.3] says that, "ICE/SEVP may examine SEVIS data for an individual, a selected group, or all students on post-completion OPT and terminate a student's record if it fails to show the student maintained the proper period of employment. In such cases, the student will be given an opportunity to show that he or she complied with all OPT requirements, including maintaining employment." For example, an ICE agent might investigate a student who appears to have more than 90/120 days unemployment if there is no employment information within the employer fields, or if a DSO has written “unemployed as of __/__/__” in the employer name field. Since ICE and other agencies may be looking in SEVIS for information, SEVP encourages students to report employer information so that the DSO can update SEVIS. See SEVP Policy OPT Guidance [7.3.1].
Note also that a student is subject to inquiry in any situation in which she comes into contact with a DHS or State Dept. official, including a visa interview, admission at a port of entry, or application/petition filed with USCIS. Since F-1 status is dependent upon employment, a student may be asked to provide evidence that s/he was employed if the information is not available in SEVIS.
DSOs May Continue to Process F-1 Benefits Until DHS Determination of Unemployment
Like DHS, a DSO has the ability to terminate a student for “otherwise failing to maintain status.” However, SEVP has advised that it is not the DSO’s responsibility to terminate records if the student exceeds the 90 or 120 day limit on unemployment. It is only for DHS to determine whether it is appropriate to terminate. See SEVP Policy OPT Guidance [7.4.2].
Until DHS terminates the student’s SEVIS record, SEVP has confirmed that a DSO should continue to process F-1 benefits, including travel signatures, transfers, Change of Education Level, or I-20 forms for other benefit applications, e.g. change of status. In addition, SEVP has advised that it is the DSO’s responsibility to update SEVIS with employer information provided by the student and to advise the student of the possible consequences on his/her immigration status due to unemployment.
In particular, if DHS determines a student has violated status by exceeding the limit on unemployment, SEVP has advised that the student would not be allowed an additional 60-day grace period to prepare for departure from the United States. Under 8 C.F.R. 214.2(f)(5)(iv) "an F-1 student who...otherwise fails to maintain status is not eligible for an additional period for departure."