Short answers -
OPT Card: No. The employee cannot work while waiting for the OPT card.
STEM OPT Card: Yes. The employee can work while waiting for the STEM OPT card, with some caveats.
Difference between OPT and STEM OPT
OPT (Optional Practical Training) card allows an international students on F-1 visa to work for a U.S. employer. The card has a validity of 12 months.
STEM OPT card is for extending the OPT period for an additional 24 months. Note - this extension is only available for students with a STEM (Science, Technology, Engineering, Math) degree.
OPT and STEM OPT Card Processing Times
Currently, it takes 3-4 months to get an OPT or a STEM OPT card. Therefore, we recommend that the foreign national employee starts working on the paperwork at least 4 months in advance.
Scenario 1: My employee is still waiting on their OPT card. Can they start work without it?
No, a foreign national cannot work if they don't have the OPT card in hand or before the start date mentioned on the card.
Scenario 2: My employee's OPT card expired and they are waiting on the STEM OPT card. Can they work while they wait?
Yes. Assuming that your employee applied for the extension before the expiration date of the OPT, the work authorization and F-1 status is automatically extended for up to 180 days while the STEM OPT Extension application is pending. The 180 days count from the expiration date of the initial 12-month OPT.
Scenario 3: My employee's OPT / STEM OPT expired while they wait for their new H-1B to start. Can they work in the meantime?
If your employee has an approved new H-1B that starts on Oct 01 and their OPT or STEM OPT has run out, then they automatically get an extension to bridge the gap till the H-1B kicks in. This is called "Cap Gap Extension".
Note to HR Managers: Don't forget to conduct I-9 checks whenever your employee's status changes from OPT to STEM OPT or H-1B.
The information contained here is meant to be informational, and while WayLit has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.