Counting Days of Unemployment

The new regulations on Optional Practical Training published by the Department of Homeland Security on April 8, 2008 have raised many questions, and a particular area of concern is the requirement that students must now count days of unemployment while on Optional Practical Training, effective with the start date of their EAD card (or April 8, 2008, whichever comes first).  The following information comes from policy guidance recently published by the Department of Homeland Security.

Days of Unemployment Are Limited
The regulations establish a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status. For students on regular post-completion OPT or who are eligible for an automatic extension due to the H-1B cap gap provisions, the unemployment limit is 90 days. Students with an approved 17-month extension will receive another 30 days of allowable unemployment time for a total of 120 days over the entire period of post-completion OPT.  Students who are authorized for pre-completion OPT (meaning authorized Optional Practical Training taking place during the time a student is still registered with Binghamton University and prior to the student’s program completion date) are not required to count days of unemployment.

Each day during the authorized period of OPT that the student does not have qualifying employment counts as a day of unemployment.

Days of Unemployment and Travel Outside the United States
If a student whose approved period of OPT has started then travels outside of the United States while unemployed, the time spent outside the United States will count as unemployment against the 90 days for OPT and 120 days for 17^th Month Extension of OPT limits.
 
If a student travels while employed either during a period of leave authorized by an employer or as part of their employment, the time spent outside the United States will not count as unemployment.

Exceeding the period of unemployment
A student who has exceeded the period of unemployment while on post-completion OPT has violated his or her status unless he or she takes one of the following actions:

• Applies to continue his or her education by a change of level or transferring to another SEVP-certified school
• Departs the United States
• Takes action to otherwise maintain legal status

Updated 07-10