OPT 90 day unemployment rule: How to avoid losing your OPT?

An F-1 student with valid post-completion OPT work authorization cannot accrue more than 90 days of unemployment. The 90 days are calculated in the aggregate, meaning that an F-1 student with valid OPT work authorization who has accrued 30 days of unemployment may only be unemployed for an additional 60 days before violating his or her immigration status.

Students with a valid 24-month STEMP OPT extension are limited to 150 days of unemployment during their 36 months of OPT work authorization.

As an employment-based immigration lawyer, I have successfully represented numerous F-1 students in changing status from F-1 to H-1B and other employment-based immigration visas. I have also helped F-1 students with valid OPT employment authorization start US businesses in compliance with all immigration regulations.

How can I avoid losing my OPT due to the 90 day unemployment rule?

US Citizenship and Immigration Services (USCIS) defines employment in broad terms. Generally, employment is defined as a paid or unpaid activity in the student’s field of study in which the student engages for at least 20 hours per week. Activities considered employment by USCIS include:

  • Standard employer-employee relationship with US employer
  • Working for several employers
  • Independent contractor
  • Working for employer through third party agency
  • Paid or unpaid internship
  • Volunteering
  • Self-employment

You must notify the US Department of Homeland Security of any changes to your employment while on OPT through the SEVIS and SEVP Portals. I highly recommend you contact your Designated School Official with any questions on how to report your employment while on OPT. As an immigration lawyer, I have seen many international students who inadvertently violated their status by not following relevant immigration rules.

I recommend keeping all employment related documents and records, including employment verification and job offer letters, to prove you were never unemployed for more than 90 days during your OPT period.  If you are worried about traveling internationally during your OPT period or if you would like an experienced immigration lawyer to review your compliance with OPT immigration rules, please contact our immigration law firm.

What will happen to me if I have accrued over 90 days of unemployment on OPT?

Exceeding the 90 day unemployment limit on OPT may have serious immigration consequences. You may lose your immigration status, become ineligible to change your status to other employment-based immigration categories, such as H-1B status, or be denied visa applications in the future.  

If you are close to accruing over 90 days of unemployment on OPT, I recommend you contact your Designated School Official or an employment-based immigration lawyer to evaluate your options.

Have you considered starting your own business on OPT? F-1 students with valid OPT work authorization may start their own business and work for themselves. If you have a business idea that is related to your field of study, this may be great opportunity to do so. Please note, while self-employment on OPT will stop you from exceeding the 90 day unemployment limit, it is important that you comply with all immigration regulations when organizing and working for your own business. Please read our article on self-employment while on OPT for more information.

As a business immigration lawyer, who has successfully represented numerous students in opening US businesses in compliance with all immigration rules, I recommend you work with an immigration lawyer experienced in company formation and business law to help you abide by all immigration rules and regulations.

Our employment-based immigration lawyer is here to help you

Are you concerned about your compliance with OPT immigration rules? Would you like to travel internationally while on OPT? Would you like to change your status or start a business while on OPT? As an experienced business immigration law firm, Pandev Law has the knowledge and experience to answer your OPT related questions.

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.

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Adrian Pandev immigration lawyer USA

Adrian Pandev

As the principal attorney at Pandev Law, I have helped hundreds of foreign individuals and companies successfully navigate their journey to the United States. Previously, I served as Trial Attorney at the U.S. Department of Justice. Now, I represent foreign investors, founders, and high-net-worth-individuals in business, immigration, and wealth planning matters. I am an early proponent of blockchain technology and serve as strategic advisor to blockchain startups and cryptocurrency investors. Selected to the Super Lawyers New York Rising Stars list 2019-2021. Follow me on Twitter, LinkedIn, or Instagram.

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