Startup Recruiting: International Students & Recent Grads

Navigating Immigration for Tech Talent: A "Dear Sophie" Column

This is another installment of “Dear Sophie,” an advice resource dedicated to addressing immigration questions relevant to the technology sector.

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of this knowledge-sharing. She states that these questions empower individuals globally to overcome geographical limitations and achieve their professional aspirations.

Access to weekly “Dear Sophie” columns is available to Extra Crunch members. Utilize the promo code ALCORN to receive a 50% discount on a one- or two-year subscription.

Dear Sophie,

I am involved in talent acquisition at a quickly expanding startup, and I am seeking innovative methods to attract top engineering professionals.

I frequently encounter highly qualified candidates nearing completion of their studies at U.S. universities who mention programs such as CPT, OPT, and STEM OPT. What strategies can we employ to effectively recruit and retain these individuals?

— Rigorous Recruiter

Dear Rigorous,

A significant number of startups often miss out on a valuable talent pool: international students, as well as recent or soon-to-be graduates from U.S. educational institutions. Many of these individuals are eager to establish their careers within the United States.

This oversight often stems from a perceived complexity surrounding U.S. immigration procedures, which can be daunting for companies unfamiliar with the process. Early-stage startups may hesitate to offer positions to international students due to concerns about the intricacies of F-1 student visas.

They might also question their ability to successfully secure an H-1B visa for these candidates. I recently discussed the nuances of hiring students on OPT in a podcast episode titled What You Need to Know About Hiring Students on OPT.

Fortunately, international students and recent graduates represent a robust talent source, characterized by high motivation, and their immigration management is entirely achievable.

Key Training Programs for International Students

The primary training opportunities available to most international students holding an F-1 visa, allowing them to work in their field of study, include:

• Curricular Practical Training (CPT): Offered by some colleges and universities to currently enrolled students. Availability varies by institution and program.
• Optional Practical Training (OPT): Accessible during academic studies (Pre-Completion OPT) or following graduation (Post-Completion OPT). It can, in certain instances, be extended through the STEM OPT extension.

Unlike traditional work visas, employers are not required to directly petition for CPT or OPT. The Form I-129, typically used for H-1Bs and O-1As, is not necessary in these cases.

However, both CPT and OPT necessitate that the student’s employment aligns directly with their field of study. The employer may be asked to provide supporting documentation, such as a training plan, to demonstrate eligibility.

Regarding the H-1B lottery, a startup only needs to fulfill fundamental sponsorship criteria to participate. These include being a legally incorporated entity, offering a position requiring specialized skills, and demonstrating the financial capacity to compensate the H-1B candidate throughout the petition’s duration (typically up to three years).

A startup’s candidate then has an equal opportunity of selection in the annual lottery as a candidate with comparable educational qualifications sponsored by a large technology corporation. While major tech companies and consulting firms often submit numerous petitions, their candidates do not receive preferential treatment in the government’s selection process.

Furthermore, a proposed shift to a wage-based H-1B lottery was rejected by a federal court in September. Consequently, the upcoming lottery will remain random, with a slight advantage given to candidates holding advanced U.S. degrees, but without consideration of salary levels.

I strongly advise consulting with a seasoned immigration attorney to navigate this process effectively. Legal counsel can provide guidance to your startup and the student or graduate, and also assist in developing a strategic plan for potential work visa or green card sponsorship.

Understanding Curricular Practical Training (CPT)

Curricular Practical Training, or CPT, is a benefit offered by certain universities. It’s designed for students whose academic programs already incorporate practical training as a core component.

Within some graduate programs, students may be eligible, or even mandated, to pursue CPT from the outset of their studies. This is often referred to as “Day 1 CPT.”

Approval for CPT must be obtained from the university’s or college’s Designated School Official (DSO). Employers seeking to hire international students utilizing CPT will need to supply detailed job information.

This information includes the job title, specific responsibilities, compensation details, the expected time commitment, and any further data the DSO deems necessary to assess the position’s suitability.

Accumulating one year of full-time CPT – defined as exceeding 20 hours per week – will disqualify a student from future Optional Practical Training (OPT) opportunities.

Conversely, engaging in part-time CPT, involving 20 hours or fewer weekly, will not affect a student’s eligibility for OPT.

Key Considerations for CPT

• CPT is intrinsically linked to a student’s academic curriculum.
• The DSO plays a crucial role in the approval process.
• Full-time CPT can impact future OPT eligibility.

It’s essential for both students and employers to understand these guidelines to ensure compliance and maximize the benefits of CPT.

Understanding Optional Practical Training (OPT)

Similar to Curricular Practical Training (CPT), Optional Practical Training, or OPT, generally allows for a period of 12 months of work authorization. This opportunity is extended to international students pursuing studies at all degree levels – bachelor's, master's, and doctoral programs.

OPT is categorized into two distinct forms: pre-completion and post-completion. The majority of F-1 visa students opt to commence their OPT period following graduation, enabling them to engage in full-time employment. Conversely, pre-completion OPT restricts students to part-time work.

It’s important to note that every two months of part-time work undertaken during pre-completion OPT will correspondingly decrease the available duration of post-completion OPT. Therefore, careful consideration should be given to this trade-off.

For students desiring employment while still enrolled in coursework, pursuing CPT, if accessible, is often advisable. This allows for part-time work without diminishing the potential for full-time post-completion OPT.

To secure OPT authorization, students are required to submit an application to U.S. Citizenship and Immigration Services (USCIS) for an Employment Authorization Document. This process begins with obtaining authorization and a signature from their Designated School Official (DSO) on Form I-20, the Certificate of Eligibility for Nonimmigrant Student Status.

The completed Form I-20, alongside Form I-765 (Application for Employment Authorization Document) and the associated filing fee, must be submitted to USCIS within a 30-day timeframe following the DSO’s endorsement.

Regarding post-completion OPT, Form I-765 can be filed up to 90 days prior to the student’s graduation date, but no later than 60 days after. A temporary rule, stemming from a class-action lawsuit settlement, allowed applications to be submitted as early as 120 days before graduation if applied for on or before October 31, 2021.

Employment can legally begin once the student receives their official work authorization card from USCIS.

Understanding the STEM OPT Extension Process

A 24-month extension of the Optional Practical Training (OPT) period is available to students or recent graduates who have completed a degree program in a Science, Technology, Engineering, or Mathematics (STEM) field.

For a startup to be able to employ an individual utilizing the STEM OPT extension, specific criteria must be met. These include active enrollment and good standing within the government’s E-Verify program.

Furthermore, employers are required to establish a structured training program directly related to the employee’s area of academic study. This necessitates the completion of Form I-983, the official Training Plan for STEM OPT Students.

The offered position must also adhere to legal standards, ensuring equivalence in responsibilities, work hours, and remuneration compared to other roles within the organization.

Securing a STEM OPT extension necessitates the application for a new employment authorization document. This involves submitting Form I-765, alongside an updated Form I-20 endorsed by the Designated School Official (DSO).

Applications can be filed up to 90 days prior to the current OPT expiration date, or 120 days if submitted on or before October 31, 2021. However, filing must occur no later than 60 days following the DSO’s endorsement of the I-20.

Individuals applying for the STEM OPT extension are permitted to continue working for I-9 verification purposes for a period of up to 180 days while their application is pending approval.

Post-Graduation Options for International Students

Upon the conclusion of their OPT or STEM OPT period, graduates are granted a 60-day window to either depart the United States, transition to a different visa status, or commence a new academic program utilizing an F-1 visa.

Startups seeking to employ promising students should register them in the annual H-1B lottery, which takes place each March. It is permissible to enter students into the lottery even prior to their graduation date.

Should a student not be initially selected in the H-1B lottery, re-registration is possible in subsequent years. This process can continue until selection is achieved or the student’s OPT or STEM OPT authorization expires.

Certain students may qualify for a period of continued employment in the U.S. while their H-1B petition is pending, known as the “Cap Gap” status. Consultation with an immigration lawyer is recommended to explore all available options for students and recent graduates.

Additional Resources

• For further learning, explore our podcast, The Visa Options All Recruiters Should Know.

Best wishes for your future endeavors!

— Sophie

Do you have a question for Sophie? Submit it here. We maintain the right to edit submissions for conciseness and clarity.

Please note that the information presented in “Dear Sophie” is intended for general knowledge and does not constitute legal counsel. For a complete understanding of the limitations of “Dear Sophie,” please review our comprehensive disclaimer. Direct contact with Sophie is available through Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, can be found on all popular podcasting platforms. She is currently accepting applications from individuals interested in being guests.