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Dobrina Ustun ✓ Attorney · 2 days ago

Hiring F-1 Students on OPT or STEM OPT: What Every Startup Founder Needs to Know A lot of startups in the U.S. hire international students on Optional Practical Training (OPT) or STEM OPT. It makes sense. These are talented, motivated people, and the hiring process is more straightforward than sponsoring a visa. But there are a few things founders get wrong, and the consequences can be serious. We are not just talking about immigration issues. We are talking about labor law violations, tax problems, and the kind of things that can kill a funding round. Here is what you need to know before you hire. 1. Immigration: The Basics Come First Immigration is always the first consideration when hiring an F-1 student, because their ability to work in the U.S. depends entirely on their status staying valid. Get this wrong and everything else falls apart. • The student must have a valid Employment Authorization Document (EAD) before their first day of work. Not in progress. Not applied for. In hand. • The work must be directly related to their degree field. This is not a gray area. If you hire a computer science student and put them in a purely administrative role, that is a problem. • If the student is on STEM OPT, your company must be enrolled in E-Verify. This is a hard requirement. There is no workaround. • Self-employment is allowed on OPT but it is not allowed on STEM OPT. This comes up a lot with startup founders who are also F-1 students. There are compliant paths to being a founder or co-founder while on STEM OPT, but that is a longer conversation for another article. 2. You Have to Pay Them This is where a lot of early-stage founders get into trouble. From an immigration standpoint, OPT does not technically require payment, as long as the student is working full time and maintaining proper records of their activities. Some founders read that and think they found a loophole. They have not. The Department of Labor (DOL) has a clear position on unpaid workers at for-profit companies. It is not allowed. The only situations where someone can volunteer without pay are at nonprofits or government agencies. At a for-profit company, the only narrow exception is if the work clearly and primarily benefits the worker, not the company. The DOL has specific tests for this, and they are not easy to pass. If you are thinking about bringing someone on in an unpaid capacity, talk to an employment attorney first. Do not assume you can structure it creatively and be fine. The DOL looks at the substance of the relationship, not what you call it. 3. 1099 or W-2: Do Not Guess Once you decide to pay someone, you need to decide how. Many early-stage startups default to classifying everyone as a contractor and issuing a 1099. It feels simpler and cheaper. But the IRS has specific rules about who qualifies as an independent contractor versus an employee, and the label you put on the relationship does not determine the classification. The actual nature of the work does. If someone works set hours, uses your equipment, reports to a manager, and does not control how they do their work, the IRS is likely to treat them as a W-2 employee regardless of what your contract says. If the IRS makes that determination after the fact, you are looking at back taxes, penalties, and interest. That is an expensive mistake for a company that is still figuring out product-market fit. Get this right from the start. The IRS guidance on worker classification is publicly available, and a quick consultation with an attorney or accountant will save you a lot of pain later. 4. Why This Matters More for Startups You might be thinking: we are a five-person team, nobody is watching us. That is true until it is not. The agencies involved here are DHS (immigration), the DOL (wage and labor rules), and the IRS (tax classification). Any one of them can create a serious problem. All three showing up at once is the kind of thing that shuts companies down. More practically: investors do due diligence. When you go to raise a seed round or a Series A, the investors will look at your employment records, your payroll, and your HR practices. If they find out your employees are unpaid, misclassified, or working on improper immigration status, the deal can fall apart. And once that happens in a fundraising process, it is very hard to recover. This is not hypothetical. It happens. The founders who avoid these problems are the ones who set things up correctly before they hire the first person, not the ones who try to clean it up under the pressure of a term sheet. The Bottom Line Hiring international students on OPT or STEM OPT is a great option for startups. These are smart, driven people, and with the right setup, it works well for everyone. But the setup matters. Before you hire: • Confirm the student has a valid EAD and that the role is related to their degree. • If they are on STEM OPT, enroll in E-Verify. • Pay them. Do not try to structure an unpaid arrangement without talking to an employment attorney first. Note: For STEM OPT, you must pay a salary. • Get the 1099 vs. W-2 question right. When in doubt, consult an accountant or attorney. Do your due diligence before you hire. The cost of getting good advice upfront is nothing compared to the cost of fixing a compliance problem after the fact.

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Dobrina Ustun ✓ Attorney · 1 month ago

EB-1A RFEs are becoming more common — and more aggressive. Here's what I'm seeing, and what actually works when you respond. First, not all RFEs are equal. There's a big difference between a template RFE (manageable, you likely already have what you need) and a super aggressive one — 15 to 30 pages that attack every piece of evidence. In the latter case, the officer has often already made up their mind. Sometimes the right call is to withdraw and refile rather than fight a losing battle. For the ones worth responding to, a few things matter: 1. Know who you're responding to. USCIS officers are not immigration attorneys. They often work from templates without deep knowledge of EB-1A standards or case precedents. Write your response accordingly — clear, structured, and legally grounded. 2. Push back on requests that exceed the regulations. USCIS regularly asks for things that simply aren't required by law — what's called ultra vires requests. If the regulation doesn't require it, you don't have to treat the request as valid. Cite the actual regulation and say so explicitly. 3. Don't just submit more documents. If you already submitted strong evidence, make USCIS engage with it. Burying it under more paper doesn't help — a well-argued legal response does. 4. When they cite case law, read the actual decision. USCIS uses the same cases repeatedly and often mischaracterizes them. More than once, I've taken a case they cited against my client and used it to support our position instead. Getting an RFE doesn't mean your case is over. It means you have a fight on your hands — and how you respond is everything. If you're navigating an RFE right now and want to talk through it, feel free to drop a question in the comments or connect with me on OCIVerse. 👉 oneclickimmigration.com/community

Since taking office, President Trump has prioritized national security and public safety by implementing a series of executive orders and proclamations that mandate strict screening and vetting of foreign nationals seeking entry or immigration benefits.

U.S. Citizenship and Immigration Services has received enough electronic registrations for unique beneficiaries during the initial registration period to reach the fiscal year 2027 H-1B numerical allocations (known as the H-1B cap), including the advanced degree exemption (master’s cap).

U.S. Citizenship and Immigration Services recently played a critical role in the arrest of Dawood Hussain, an illegal Pakistani alien charged with felony vehicular homicide, after driving a commercial truck the wrong way on a Pennsylvania highway in October 2023.

U.S. Citizenship and Immigration Services provided pivotal assistance to a visa fraud investigation that resulted in federal grand jury indictments of 10 Indian nationals.

U.S. Citizenship and Immigration Services played a key role in the investigation that led to the sentencing of Nada Radovan Tomanic, a naturalized U.S. citizen from Bosnia and Herzegovina, to 30 months in prison for naturalization fraud.

The vigilant fraud detection efforts of U.S. Citizenship and Immigration Services directly resulted in the arrest of Young Joo Ko, 59, of East Hollywood. Ko, a lawful permanent resident from South Korea, was charged in Los Angeles with fraud and misuse of visas, permits and other documents.

U.S. Citizenship and Immigration Services helped investigate Emmanuel Oluwatosin Kazeem, a native of Nigeria recently named in a civil denaturalization complaint filed by the U.S. Department of Justice.

U.S. Citizenship and Immigration Services played a key role in the investigation that led to a federal jury finding Ana Zahia Gonzalez, 46, guilty of naturalization fraud.