An F-1 student in the first 12 months of post-completion OPT work authorization cannot be unemployed for more than an aggregate total of 90 days. Many F-1 students on OPT who contact our immigration law firm believe that in order to comply with the 90 day rule they must necessarily find a typical employee position with a US employer.
There is an often overlooked alternative option for entrepreneurial F-1 students. Namely, an F-1 student with valid post-completion OPT work authorization may work for him or herself. As an employment-based immigration lawyer, I have successfully represented numerous F-1 students in opening US businesses in compliance with all immigration rules.
What are the requirements for self-employment on OPT?
The exact language in US Immigration and Customs Enforcement’s guidance states: “A student on OPT may start a business and be self-employed. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student’s degree program.”
So what does this exactly mean? As a business and immigration lawyer, I will breakdown these requirements covering both immigration law and business law perspectives:
First, the student must have “the proper business licenses.” This means that the student must form a business, secure a Federal Employer Identification Number (EIN), and obtain all necessary business licenses. The amount and type of licensing needed will depend on the exact business the student is starting. Many businesses do not require additional licenses. I recommend you work with an experienced business immigration lawyer, who has experience in company formation and business law, to evaluate the exact licensing requirements for your business.
Second, the student must be “actively engaged in” the business. This requirement is generally interpreted to mean that the student must work full-time for the business.
Third, the business must be “related to the student’s degree program.” This requirement limits the type of businesses a student on OPT may start. The business activities of the company must be related to the student’s major. I recommend you work with an employment-based immigration lawyer and your Designated School Official to determine whether your proposed business is related to your field of study.
What are the benefits of self-employment on OPT?
For an entrepreneurial student on OPT, the self-employment option gives the student 12 months to establish and grow his or her business in the US. This could be sufficient time to develop a critical US market niche, secure vital financing, or turn a business idea from concept to reality.
OPT self-employment stops the 90 day unemployment clock. This allows the student to remain in the US for the entire 12 month OPT period. I recommend you consult an employment-based immigration attorney to ensure that your new US business complies with all OPT self-employment requirements. If you do not organize your business in compliance with immigration rules, you may be found to have violated your student status.
Can a student on STEM OPT be self-employed?
Self-employment is generally not allowed under the new 24-month STEM OPT regulations. However, the regulations do not expressly prohibit self-employment by students on STEM OPT. The US Department of Homeland Security has clarified that STEM OPT employment requires a bona fide employer-employee relationship between the student and the employer. However, a STEM OPT applicant may be employed in a start-up or small business as long as all other regulatory requirements are met. If you are self-employed and considering applying for a STEMP OPT extension, I recommend you contact an employment-based immigration lawyer to evaluate whether you may qualify.
The exact language on the US Department of Homeland Security website states: “F-1 students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Form I-983 because F-1 students may not provide employer attestations on their own behalf. However, STEM OPT applicants can participate in a start-up or small business so long as all regulatory requirements are met. The employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. . . These requirements mandate that the company remains in good standing with E-Verify and has the resources to comply with the proposed training plan.” See STEM OPT EXTENSION OVERVIEW.
Based on the above, an F-1 student who is a part owner of a startup or other business could qualify for STEM OPT as long as all other requirements are met. I recommend you contact an experienced business immigration lawyer to ensure compliance with all immigration rules and to avoid any immigration status violations.
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What are my options after my 12 months of OPT have expired?
You may qualify for an employment-based visa or an entrepreneur visa which would allow you to continue to work for your business in the US. Please contact an employment-based immigration lawyer who can devise your personal entrepreneur visa USA or employment-based visa USA plan.
Our employment-based immigration lawyer is here to help you with OPT self-employment
Are you wondering whether you qualify for OPT self-employment? Would you like an experienced business and immigration lawyer to organize your business in compliance with all OPT immigration rules? Would you like your own customized employment-based immigration USA strategy prepared by an immigration attorney? As an experienced business immigration law firm, Pandev Law has the knowledge and experience to guide you through the OPT self-employment and business formation process.
See what other foreign students who have started successful business on OPT say about our immigration law services:
“Being an F1- international student, It was intimidating for me to go through the process of legal work done to form my LLC. Adrian and his team consistently provided my digital startup company with amazing representation, from company formation to drafting various critical contracts and agreements. Adrian also provided me with important advice on international deals and U.S. immigration compliance. He took away the stress of legal work off my head and asked me to focus on my business which is exactly what everyone seeks from an attorney. Adrian is always a pleasure to work with and truly cares about your business as he does about your legal issues. He is like close friend who makes you very comfortable and explains you everything in great detail. I would highly recommend him to foreign individuals seeking any kind of legal advice or services.”
Please complete our contact form, email [email protected], or call us at (212) 220-6652 to schedule a consultation with our employment-based immigration attorney.
During your consultation, our business immigration lawyer will provide an honest assessment of your case, and a recommendation about your next steps.
Disclaimer: This blog article is provided by Pandev Law, LLC for general educational and informational purposes only. Although this article discusses general legal issues, it does not constitute legal advice nor does it establish an attorney-client relationship. No reader should act or refrain from acting on the basis of any information presented in this article, or elsewhere on this website, without seeking the advice of appropriate legal counsel, or other professional counsel, licensed in the relevant jurisdiction. Pandev Law, LLC expressly disclaims any and all liability with respect to any actions taken, or not taken, based on any content of this article or website. This blog article may constitute attorney advertising. Prior results do not guarantee a similar outcome.
