Immigration is a team sport. By the time a compliance issue surfaces — an employee who cannot legally start, a visa petition that gets denied, a Green Card that stalls — it almost always traces back to a decision made weeks or months earlier by someone who did not know the rules applied to them. Standardizing how your team handles immigration across recruiting, onboarding, and ongoing status management is about making sure the right information reaches the right person before the wrong decision gets made.
The field of study requirement
For employees on OPT or STEM OPT, the job must be directly related to the student's major field of study as listed on their I-20. The title alone is not enough — the actual job duties need to connect to the degree field. If there is any question about whether a specific role and degree combination qualifies, confirm with your immigration provider before the offer goes out, not after.
The H-1B specialty occupation requirement
H-1B sponsorship requires that the role qualifies as a specialty occupation — one that normally requires at minimum a bachelor's degree in a specific and related field. Before extending sponsorship, confirm two things with your immigration counsel: whether the role itself meets that standard, and whether the candidate's degree is in a directly related field. General administrative, customer service, and non-technical roles frequently raise qualification questions worth resolving early.
OPT and STEM OPT start date timing
OPT EAD processing currently takes 90 days or more. The employee cannot start until the physical card is in hand. Before agreeing to a start date with an OPT candidate, ask when they filed their EAD application and build from there. Assuming the card will arrive by a specific date is where avoidable problems begin.
Before the offer letter is drafted, confirm four things about the candidate's work authorization.
| Current work authorization and expiration date | Ask directly and document it. You will need it for the I-9 and for onboarding planning. |
| Start date eligibility | Match the start date to the candidate's actual authorization timeline, not an assumed one. See the start date table in Stage 3. |
| Sponsorship path and timeline | If sponsorship is required, the offer letter should not commit to a specific approval date. Sponsorship timelines depend on USCIS processing, RFEs, and lottery outcomes. |
| Job duties and degree alignment | Confirm the offer letter title and job description are consistent with the candidate's degree field and the H-1B or OPT basis. Mismatches between what the candidate does on paper and what USCIS sees in a petition are a leading source of RFEs and denials. |
| Status | Can Start? | What HR Needs Before Day 1 | Key Rule |
|---|---|---|---|
| F-1 CPT | Yes, with auth | CPT authorization on I-20 for the specific employer and position | Full-time CPT for more than 12 cumulative months may eliminate OPT eligibility — confirm with your immigration provider before assuming OPT is available |
| F-1 OPT | EAD in hand | Physical EAD card (Form I-766) | Do not start before card arrives. Job must relate to field of study. |
| F-1 STEM OPT | See note | Updated I-20 (DSO-endorsed) + prior OPT EAD; or new STEM OPT EAD once issued | Continuing employee at same employer: can work on updated I-20 + expired OPT EAD during 180-day extension. New employer: E-Verify enrollment required before Day 1. |
| H-1B (cap-subject) | Oct 1 or later | Form I-797 approval notice | Cannot start before petition approval. Earliest possible start is October 1. |
| H-1B (transfer/portability) | Day of filing | Form I-797C receipt notice | 180-day rule: employee must have been in H-1B status 180+ days and role must be same or similar occupation. |
| H-1B (cap-exempt) | Approval date | Form I-797 approval notice | No lottery. Premium processing available. Nonprofits, universities, research organizations. |
| TN (Canada/Mexico) | Day of TN grant | TN approval document or I-94 record | Canadian nationals: granted at port of entry, same day possible. Mexican nationals: consulate visa required first. |
| L-1 (intracompany) | Approval date | Form I-797 approval | L-1A (managers/executives): up to 7 years. L-1B (specialized knowledge): up to 5 years. Time counts toward H-1B cap. |
| O-1 | Approval date | Form I-797 approval | Extraordinary ability in sciences, arts, education, business, or athletics. |
| H-4 EAD | EAD in hand | Physical EAD card | Only valid if H-1B principal has approved I-140 or has exceeded the 6-year H-1B cap. If principal's status lapses, H-4 EAD is invalid. |
| DACA EAD | EAD in hand | Physical EAD card | DACA recipients must have a valid EAD card to start and continue working. If there is a gap between the current card's expiration and the new card's arrival, consult your immigration provider before the expiration date. |
| TPS EAD | EAD in hand* | Physical EAD card | Only valid if the employee's country's TPS designation is active. Verify current TPS status before relying on this authorization. |
| GC EAD (I-485 pending) | EAD in hand | Physical EAD card (combo card) | Renewable indefinitely while I-485 is pending. |
| Green Card | Day 1 | Form I-551 (Green Card) | No employment restrictions. Card renews every 10 years but status is permanent. |
| US Citizen | Day 1 | Standard I-9 documents | No sponsorship. No restrictions. |
The document each employee presents depends on their status: EAD holders present their EAD card, visa holders present their foreign passport and I-94 together, and Green Card holders present their Form I-551. If you are unsure whether a specific document combination is acceptable for a given status, confirm with your I-9 compliance resource before Day 1 — not during onboarding.
- Accepting a visa stamp alone as work authorization. A visa stamp permitted the employee to seek admission; the I-94 shows the status they were actually admitted in.
- Treating an I-797 approval notice as a work authorization document. It is not a List A, B, or C document on its own.
E-Verify
E-Verify is required for STEM OPT workers — it is a condition of the extension, not optional. If your company is not enrolled in E-Verify, STEM OPT employment may not be available to you. For all other statuses, E-Verify is federally voluntary unless your state law or a federal contract requires it.
Foreign national employees may be classified as US tax residents or non-residents for tax purposes. This affects which taxes are withheld and how forms are filed. The classification is determined by the Substantial Presence Test, not by visa status alone.
Knowing the exact trigger date matters because retroactive payroll corrections are costly and create employee relations issues. The table below identifies when FICA withholding typically begins for the most common status transitions — share it with your payroll team before each change takes effect, not after.
| Scenario | FICA Withholding Begins | Note for Payroll |
|---|---|---|
| F-1 OPT or STEM OPT → H-1B (cap-subject) | October 1 | The H-1B period for cap-subject petitions starts October 1. Begin FICA withholding when you receive the I-797 approval notice — not before — and instruct payroll to set the effective date to October 1. If the employee was working between October 1 and the notice date, a retroactive payroll correction may be needed for that period. Confirm the scope of the correction with your payroll tax specialist. |
| F-1 OPT → H-1B (cap-exempt or non-cap transfer) | H-1B start date on I-797 | Non-cap H-1B can start on any date. Use the start date printed on the I-797 approval notice as the FICA trigger date. |
| F-1 student in their 6th+ calendar year in the US | May pre-date the H-1B | F-1 students are FICA-exempt for their first five calendar years in the US. After that, the Substantial Presence Test begins to apply — and a student present most of the year almost certainly meets it. FICA may have already been required before the H-1B transition. Confirm the student's US presence history with a payroll tax specialist at onboarding. |
| L-1, TN, O-1 | Substantial Presence Test | These visa categories carry no automatic FICA exemption. FICA applies once the employee meets the Substantial Presence Test — generally within the first one to three years depending on days in the US. Have a payroll tax specialist assess each L-1, TN, or O-1 employee at onboarding rather than waiting for an annual tax review. |
Every major immigration status change creates administrative tasks for HR. The following transitions occur most frequently and generate the most compliance risk when handled inconsistently.
Triggered when: the student graduates or finishes their academic program.
CPT authorization ends with the program. If the OPT EAD has not arrived by that date, there is no automatic bridge — the employee cannot work during the gap. The signal to watch early: if a student has accumulated 12 months of full-time CPT, they may no longer be eligible for OPT. Engage your immigration provider as soon as you know a student is approaching graduation to stay ahead of the EAD timeline.
Triggered when: the employee holds a qualifying STEM degree and OPT is approaching expiration.
The STEM OPT extension requires the employer to be enrolled in E-Verify. If your company is not enrolled, STEM OPT employment may not be available to you regardless of the employee's degree or role. The extension process is managed by the student and their school's DSO — the DSO endorses the updated I-20, and the student files the EAD application with USCIS. HR's role is to complete the Training Plan (Form I-983) with the student and confirm E-Verify enrollment before the process begins.
Triggered when: the employee is selected in the H-1B lottery and the petition is approved.
The key nuance here is the cap-gap window. If the employee's OPT expires between April 1 and September 30, work authorization can continue through September 30 — but only if the H-1B petition was filed before the OPT expiration date. Your immigration provider handles the documentation. HR needs to know this window exists, confirm the employee isn't traveling internationally during it, and update payroll for FICA withholding on the H-1B start date.
Triggered when: an H-1B employee changes employers.
Under AC21 portability, an H-1B employee can start on Day 1 of filing — no approval needed — if they have been in H-1B status for 180 or more days and the new role is in the same or a similar occupational classification. Your immigration provider confirms whether portability applies. If there is any question about whether the roles are sufficiently similar, that is the signal to engage counsel before Day 1, not after.
Triggered when: an L-1 employee is selected in the H-1B lottery, or the company is converting their status.
Two things to surface before filing: how much combined H-1B and L-1 time the employee has used — since both count toward the 6-year cap — and whether current compensation meets H-1B prevailing wage requirements for the position and worksite. These questions involve immigration counsel and HR compensation together. Flag them before the lottery registration window, not after selection.
Triggered when: TN status is expiring, or the company is transitioning the employee to H-1B.
TN is one of the more straightforward statuses to maintain. Canadian nationals renew at the port of entry on return from any international trip; Mexican nationals need a consular appointment. The signal to watch: if the employee's role or duties have shifted, confirm with your immigration provider that the TN occupation classification still applies before the next renewal — not all roles qualify.
H-4 EAD authorization is entirely dependent on the H-1B principal's status — and that principal works for a different employer. HR will not be automatically notified if the principal's situation changes. Ask the H-4 EAD holder to notify HR if their spouse's H-1B status changes for any reason. If you learn the principal's status has lapsed, that is an immediate signal to engage your immigration provider before continuing the employee's employment.
DACA recipients must have a valid EAD card to start and continue working. Track the expiration date and begin the renewal conversation early — EAD card processing takes time and there is no guarantee of continuity.
TPS EAD validity is tied to the TPS designation for the employee's country, which can change through government action or court orders. The nuance: court stays can extend valid work authorization beyond the printed card expiration date, and designations can also be terminated. If there is any uncertainty about whether a country's TPS designation is currently active — particularly if it is in litigation — consult your immigration provider before relying on the printed card date. This is not a situation to interpret independently.
What to track for every foreign national employee
- Current visa status and I-9 document type
- I-9 document expiration date
- Re-verification target date (90 days before expiration)
- Next renewal filing target date (not the expiration date — the filing target date)
- H-1B petition anniversary (for LCA posting and wage review obligations)
- Dependent authorization status if applicable (H-4 EAD, dependent visa expiration)
- Name of immigration attorney handling the case
When to engage immigration counsel without exception
- Any situation where an employee may have a gap in work authorization
- Any proposed change to an H-1B employee's job title, duties, salary, or work location — before the change takes effect
- Any employee from a Group A or Group B immigration ban country considering international travel
- Any I-9 audit, government inspection, or USCIS inquiry
- DACA or TPS status changes that affect an employee's authorization
- Any portability situation where the employee's occupational classification may have shifted
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