Ask Sophie: What are my options if a company rescinds my OPT job offer?

Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I’m an international student graduating this month, but the company I was supposed to start working for on OPT has rescinded my job offer.

What are my options?

— Grappling Grad

Dear Grappling,

First of all, congratulations on your upcoming graduation. I know things might feel daunting for you right now, but remember to celebrate your accomplishment and this important milestone.

A lot of immigrants often find themselves in situations that require them to pivot quickly. You are not alone and there are resources out there to support you.

There actually might be some silver linings here for you. As you explore your options, remember that often the most innovative and insightful ideas have been born during challenging times.

Notify your DSO

If you haven’t already, you should notify the Designated School Official (DSO) at your university about your situation and make sure your records get updated. Federal regulations require you to notify your DSO within 10 days of any employment or personal information changes. DSOs are required to update the information in the federal Student and Exchange Visitor Information System (SEVIS) system within 21 days.

One important detail to keep in mind is that F-1 students on OPT (Optional Practical Training) are only allowed to be unemployed for 90 days after they graduate. Some of the details of your next steps may differ depending on whether you already have applied for and received your OPT work permit yet.

Now, let’s dive into some options!

Create your own company

If you’ve ever read my column, you’ve probably figured out that I’m pretty partial to founders and I love the excitement and world-changing potential of startups. So, I’m presenting this option first, although it might be different from what your parents and peers have been recommending!

Did you know that you can create your own job by founding or co-founding a startup? Founders are allowed to be self-employed on OPT as long as most of the work done at their startups is related to their field of study, they notify their DSO and as long as they have their Employment Authorization Document (EAD) card in hand.

From a corporate law perspective, you need to set up your company and obtain any business licenses required by the state in which you’re located. I suggest you consult with both a corporate attorney and an immigration attorney to guide you based on your goals and post-OPT plans.

As your startup grows, you can structure things so that it can sponsor you for other immigration benefits, such as STEM OPT, the two-year extension of OPT if you are a STEM grad or various work visas such as the H-1B specialty occupation visa or O-1A extraordinary ability visa.

Qualifying your company to sponsor you for STEM OPT work authorization can be complex, so I suggest consulting with an immigration attorney. To be eligible for two-year STEM OPT work authorization once your one-year OPT work authorization expires, your field of study must be listed on the U.S. Department of Homeland Security’s STEM Designated Degree Program List.

To work for your own company under STEM OPT or a work visa, you must have a formal employer-employee relationship with your company, and your company will need to develop a training plan for you and enroll in the government’s e-Verify system.

Demonstrating an employer-employee relationship means you will need to designate a supervisor, such as a co-founder, to oversee your work and control your employment. There may be other considerations as well. These are all very doable, but you should keep these factors and compliance requirements in mind when proceeding down this path. Take a look at this previous Ask Sophie in which I dive into more detail about applying for STEM OPT.

The earliest you can apply for STEM OPT is 90 days before the current 12-month OPT EAD is set to expire. For an additional fee, 30-day premium processing is now available for OPT and STEM OPT.

Find another job

If you’re feeling that things are not quite ripe yet to found your own startup, you will need to find another job in your field within 90 days from the start date listed on your OPT EAD card. Inform your DSO when you find a job.

You may be comforted to hear that the number of tech job postings in April in the top five tech categories, which includes software developers and engineers, other computer occupations, IT support specialists, systems analysts and data scientists, increased by nearly 15,000 to nearly 210,000, according to a report by the Computing Technology Industry Association (CompTIA), a nonprofit trade association.

When you’re on OPT, you can only be unemployed for up to 90 days. So if you’re unable to find a job within the 90-day window, you must either leave the U.S. or change your status to another visa that doesn’t require a job offer and an employer sponsor: You could enroll in a new F-1 program and resume your studies (but potentially waive the remainder of your OPT) or even change your status to a B-1 temporary business visitor visa.

The B-1 visa would enable you to engage in certain activities, such as attending interviews and meetings, negotiating contracts and participating in a hackathon. However, you are not authorized to work on the B-1. If you do, you risk jeopardizing your current status or future immigration plans. Consult your immigration attorney if you have questions about activities that are allowed.

After OPT and STEM OPT

If you travel outside of the United States while you’re on F-1 OPT or STEM OPT, keep in mind that you must maintain non-immigrant intent as an F-1 student to reenter. That means you must demonstrate to immigration officials at a U.S. port of entry that you intend to eventually return to your home country. In other words, you must not intend to stay permanently in the United States by getting a green card.

When you’re on OPT and if you’re eligible for the two-year STEM OPT extension, your startup or your employer can register you in the annual H-1B visa lottery every March for the next three years (and even beyond). If your startup plans to sponsor you for an H-1B, you will need to demonstrate an employer-employee relationship. Startups with multiple co-founders can enjoy an easier process. Your startup will also have to meet other requirements, which you should discuss with an immigration attorney.

Given the dramatically shrinking chances of getting selected in the H-1B lottery (this year, there were nearly 800,000 individuals registered in the lottery for 85,000 H-1B visas) and the time, cost and energy it takes to apply for an H-1B visa, I typically recommend pursuing other options such as a cap-exempt H-1B or the O-1A extraordinary ability visa. The work that founders do to start and grow their company typically makes the O-1A visa easily attainable.

The three years of OPT and STEM OPT will also give you a great chance to build up your qualifications for an O-1A, which requires you to meet at least three of eight criteria, such as winning a national international award, writing articles in your field or being the subject of articles published in professional, trade or major media publications. Check out this previous column in which I discuss the O-1A qualifications in more detail.

The O-1A can also offer much more flexibility and job security if you use an agent to file an O-1A petition on your behalf rather than a single employer. Using an agent will enable you to change or add jobs or projects in the United States without amending the petition every time as long as you continue to work in your field.

You’ve got this! All my best!

— Sophie

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Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

Sophie’s podcast, Immigration Law for Tech Startups is available on all major platforms. If you’d like to be a guest, she’s accepting applications!