The transition in presidential leadership during 2021 also has the potential to cause profound shifts in policy. For the most up-to-date information, we always encourage you to consult internal counsel and/or US Citizenship and Immigration Services.
Hiring an international student allows you to bring some of the world’s best talent into the workplace. The benefits to hiring an international student include:
- Broadening the diversity of voices, ideas, and perspectives on your teams
- Enhancing your company’s global competitiveness with increased cultural understanding
- Contributing to a student’s understanding of American industries and potential post-grad career paths
All International Students are required to obtain a student visa to pursue their degree or exchange program in the United States. Like most universities and colleges, Emerson College currently sponsors two types of non-immigrant student statuses:
- F-1 Student Status—Non-immigrant students working towards a specific degree(e.g. BA, MA, PhD, MD) and some exchange programs. Documents for these students include form I-20, F-1 visa, I-94 card or Electronic I-94 record, and Admission Stamp.
- J-1 Student Status–Non-immigrant status used for international exchange. Documents for these students include form DS-2019, J-1 visa, I-94 card or Electronic I-94 record and Admission stamp.
A common misconception about international students is that they are not allowed to work without sponsorship.
The benefit of the F-1 and J-1 status is that most students may apply for work authorization to accept a variety of employment opportunities. Best of all, it is possible for students to begin working without their employers having to provide visa sponsorship. However, some work authorization types do require an application to the government or the student’s international office at their school.
For the purposes of understanding the requirements for hiring international students, we have broken down this information by two types of positions: Hiring for Internships and Hiring for Jobs.
CPT is a type of F-1 work authorization that allows students to work off campus in cases where the employment will fulfill 1) a requirement of the student’s degree program, or 2) the requirement of a student’s major at Emerson. CPT eligibility requirements are quite strict and cannot be adjusted based on a student’s particular circumstances.
Other Characteristics of CPT:
- No employer sponsorship needed, but the application does require the employer to provide a CPT letter
- Students must be enrolled full-time for one academic year before they can apply
- CPT can only be used before a student completes their degree/graduates.
- Application is initiated by the student, is processed by the Office of International Student Affairs and takes approximately 2 weeks to approve
- Allows part-time and full-time work.
- Student must have an offer before they can apply.
When students apply for CPT, they will be required to submit a CPT employer letter. This letter is crucial to authorizing CPT and we strongly recommend that employers use the CPT employer letter template to make sure all required information is included and prevent CPT processing delays.
Once all documents are received, it will take approximately 2 weeks for International Student Affairs to authorize the student’s CPT. CPT Approval comes in the form of a new form I-20 which will detail the employment authorization on page 2. The form I-20 may be copied for Human Resources purposes however, the student is required to carry the original.
OPT is a type of F-1 off campus work authorization for degree-seeking students who wish to gain experience in jobs directly related to their major area of study. This process is required for paid internships.
Characteristics of OPT:
- No employer sponsorship needed.
- Students must be enrolled for one year before applying for OPT.
- OPT may be used before or after a student completes their degree.
- OPT acquired before degree completion is referred to as Pre-completion OPT.
- OPT acquired after degree completion is referred to as Post-completion OPT.
- Application is initiated by the student, is authorized by the U.S. Citizenship and Immigration Services (USCIS) and takes 3-4 months to be approved. USCIS does not expedite applications.
- Allows part-time and full-time work; students on Post-completion OPT are required to work at least 20 hours per week.
- Eligible students have a maximum of 12 months of OPT; students who have earned a degree in a STEM-designated field may be eligible for an additional 24 months under the OPT STEM Extension.
- Job offer is NOT required for application.
- Students must work in a job that is directly related to their degree program.
Employers can choose to have little to no involvement with the OPT application process, however, students are required to report general employment information to the OIA and may request an Employment Verification Letter for travel purposes. STEM OPT carries additional employer requirements.
OPT approval comes in the form of an Employment Authorization Document (EAD). This card will state the specific start and end dates for OPT. This card will be provided to the International Student you are hiring.
Employers seeking to hire recent grads may utilize an International Students’ remaining time through OPT Work Authorization. For more information about OPT hiring, see the Paid Internships section above.
Employers seeking to hire recent grads whose OPT has either expired or been utilized, they should pursue H1-B Sponsorship.
The H1B visa enables foreign skilled workers to stay in the US for up to six years and apply for permanent residency in the interim. Because this visa permits a foreign national to have “dual intent”, there is no conflict when an H1B temporary worker applies for a green card.
As part of the H1B petition, the employing company, serving as the petitioner of the H1B visa petition, must make a number of attestations. It is important that the employer familiarize itself with the statements its agreeing to so as to avoid future inadvertent noncompliance and possible penalties.
Part of the H-1B process involves submitting a Labor Condition Application (LCA) to the Department of Labor (Form ETA 9035). The LCA contains a number of important attestations that the employer agrees to. They are the following:
- The actual versus the prevailing wage: Here, the actual wage is the wage that the company’s compensation department has set for the position for all employees with similar experience and skill. Usually, the prevailing wage is a figure provided by the states employment agency which it thinks is an accurate reflection of what other employers are paying for that position. The employer must agree to pay the higher of the two wages.
- Working conditions: The employer must state that employing the foreign national will not adversely affect the working conditions of other similarly employed workers. Therefore, an employer who increased working hours and decreased vacation periods as a result of hiring foreign nationals would not be in compliance with this attestation.
- Strikes, lockouts, and work stoppages: If any of these develop after the Labor Condition Application is filed with the Department of Labor, the petitioning employer must inform the Department of Labor.
Notice regarding the LCA: employers must provide notice of the LCA to its employees through posting the LCA on the premises for at least ten business days. The posting must be done in two different conspicuous locations.
- Public access file: H1B regulations require that the employer maintain a public access file which is to be made available for public inspection. The file must contain documentation showing that the employer is complying with the aforementioned requirements.
- Additional requirements for H1B dependent employers. Employers are considered to be H1B dependent if they have less than 25 workers and more than 7 H1B workers; between 26 to 50 workers and more than 12 H1B workers; or more than 50 workers with 15% or more of them being H-1B foreign nationals. In this case, H1B dependent employer must fulfill 2 additional requirements.
- Displacement of US workers: An H1B dependent employer must attest that by hiring a H1B worker, it is not displacing any US worker for a similar position within 90 days before or after filing a H1B petition.
- Recruitment efforts: The H1B dependent employer must also attest to making good faith attempts to recruit US workers and offering prevailing wages for this position. When hiring an H1B worker, it is important for employers to recognize the attendant responsibilities that they must shoulder. Although the requirements are not excessively burdensome, the employer is required to maintain some paperwork to demonstrate its compliance with the law. A clear understanding and fulfillment of these requirements will minimize possible civil penalties and ensure that the employer will be permitted to petition for future H1B workers
For More Info on the H1-B Visa:
H1-B OPT CAP-GAP Extension
The “H-1B Cap-Gap Extension” refers to the period of time between the end of a student’s F-1 status (end of OPT or grace period) and the beginning of the student’s H-1B status (October 1). This should only be considered for employers who have already offered H1-B sponsorship to an International student or recent grad.
If a student has an H-1B application pending with or approved by USCIS before the end of their OPT authorization, the Cap Gap extension rule automatically extends an eligible F-1 student’s OPT authorization during this “gap” period until the H-1B status becomes active (October 1).
This extension is available to F-1 students whose OPT was approved or who:
- Have an OPT end date on or after April 1 [current year] and
- Have a pending or approved Change of Status H-1B petition (I-539) with USCIS.
- The H-1B petition was filed in a timely manner with USCIS, according to the acceptance period, and
- The employer is subject to the H-1B cap (is not exempt from the cap)
In most cases, USCIS automatically adds the cap-gap extension to student’s records who are eligible. If a student believes the cap-gap should be added to their record but it was not, they should contact the Office of International Students at Emerson College.