F-1 students risk losing status due to unpaid internships on OPT.


Shilpa Malik, Esq.

"The USCIS Nebraska Service Center (NSC) has recently started rejecting certain applicants who have filed for extension under the F-1 Student STEM OPT. These recent denials are due to findings of student participation in unpaid internships instead of general employment during the first year of OPT. The USCIS NSC has recently determined that unpaid internships are no longer considered employment, though according to the OPT Policy Guide disclosed in 2010, unpaid internships were accepted forms of employment. The NSC change has left many OPT participants exceeding the 90 day limitation and searching for valid alternatives.

Immigration Reform and Control Act of 1986 (IRCA)

The USCIS Nebraska Service Center has made this determination based on the IRCA. The IRCA defines employment as "working for wages or other remuneration." After the IRCA was passed, an Interim Final Rule was administered which authorized a maximum 90 day period of unemployment during the first 12 months of OPT status. Though this rule had not specified categories of unemployment. In effect, the SEVP (Student and Exchange Visitor Program) issued a OPT Policy Guide in 2010 which authorized unpaid internships and volunteering as alternatives of employment. However, the NSC has recently changed it's position without an advanced warning. Unfortunately, there was no public notification of the position changed, but the NSC continues to base the decision on I-9 employer requirements.

Currently AILA (American Immigration Lawyers Association) and NAFSA are discussing the situation with SEVP and the USCIS to have NSC reconsider its position.

Options after Denial of Extension

If a F-1 Student Visa holder has had his/her STEM OPT application denied by the NSC due to the recent change in policy, the student has the option to file a motion to reopen. Depending on the circumstances, the student may also be eligible to enlist in a new program. However, unless the NSC reconsiders the policy change, students may have to leave the United States and petition for a new F-1 student visa. If you have received denial from the NSC or have any additional questions regarding your extension, please feel free to contact our immigration attorneys for legal advice and motion to reopen options."

Reprinted with permission.

About The Author

Shilpa Malik, Esq. is an experienced immigration lawyer specializing in employment based immigration, L-1 & H-1B work visa, family and marriage based immigration. She is the Founder and Managing Attorney of SGM Law Group, PLLC, an immigration firm committed to providing professional service and legal expertise similar to large firms while ensuring personal attention, compassion and accessibility of a small law practice. Prior to founding her own law firm, Shilpa worked as a Senior Attorney at prominent New York City based law firms where she practiced Immigration Law exclusively. She is admitted to the New York State Bar and is a member of the American Immigration Lawyers Association (AILA) and American Bar Association (ABA).

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