Articles The U.S. Department of Homeland Security (DHS) has released good news for students who are studying in the
The new rule will provide some relief for US companies seeking to attract and retain highly skilled foreign workers. Under the prior regulations students were granted a maximum of 12 months of OPT so would often be required to leave the
What is the OPT?
OPT is temporary employment that is directly related to an F-1 student's major area of study. It is designed to be a practical experience component for foreign students receiving their education in the U.S. Under the prior rules, an F-1 student could be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies. Any authorized OPT must be directly related to the student's major area of study.
Pre-completion OPT
An F-1 student may be authorized to participate in pre-completion OPT after he or she has been enrolled for one full academic year. Students authorized to participate in pre-completion OPT are limited to part-time work while school is in session. They may work full time when school is not in session.
Post-completion OPT
An F-1 student may be authorized to participate in post-completion OPT upon completion of studies.
When and how to apply for OPT?
The new rule has made some changes to when students can apply for OPT. Under the prior regulations, F-1 students had to apply for post-completion OPT prior to graduation. This rule allows F-1 students seeking initial post-completion OPT to apply during their 60-day departure preparation periods, similar to how they are allowed to apply for a change to H-1B status during their departure preparation periods. Students may apply for an OPT extension at any time prior to the expiration date of their current OPT period.
Students must initiate the application process by requesting the Designated School Official (DSO) at their academic institution to recommend the OPT. The DSO makes the recommendation by endorsing the student's Form I-20 and by making appropriate notation in SEVIS. Students then file Form I-765, Application for Employment Authorization Document (EAD), with U.S. Citizenship and Immigration Services (USCIS). If approved, USCIS will issue an EAD to the student. The student may begin their OPT only after an application has been approved and an EAD has been issued.
Eligibility Criteria for the new 17-month extension of post-completion OPT
To be eligible for an OPT extension, an F-1 non-immigrant student must:
Currently be participating in a 12-month period of approved post-completion OPT;
Have successfully completed a degree in science, technology, engineering, or mathematics included in the DHS STEM Designated Degree Program List, from a SEVIS certified college or university;
Be working for a U.S. employer in a job directly related to the student's major area of study;
Be working for, or accepted employment with, an employer enrolled in USCIS' E-Verify program (see below); and
Properly maintain F-1 status.
Application Process for the 17-month STEM Extension
The student files Form I-765 with USCIS, Form I-20 endorsed by the DSO, a copy of the STEM degree, and the required application fee (Form I-765 is being amended to require the student to indicate the degree and provide the employer's E-Verify information);
If their post-completion OPT expires while the 17-month extension application is pending, students who timely filed their STEM extension applications with USCIS will receive an extension of employment authorization after their current employment authorization expires, but for no more than 180 days.
What are the eligible STEM degrees?
To be eligible for the 17-month OPT extension, a student must have received a degree included in the STEM Designated Degree Program List. This list sets forth eligible courses of study and was developed by the U.S. Department of Education's National Center for Education Statistics.
Note: To be eligible for an OPT extension the student must currently be in an approved post-completion OPT period based on a designated STEM degree. Thus, for example, a student with an undergraduate degree in a designated STEM field, but currently in OPT based on a subsequent MBA degree, would not be eligible for an OPT extension.
The F-1/H-1B Cap-Gap
Another aspect of the rule responds to the situation in which an F-1 student's status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this problem by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions.
What is the F-1/H-1B "cap-gap"?
The cap is the congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000, with certain statutory cap exemptions. Cap-gap occurs when an F-1 student's status and work authorization expire in the current fiscal year before they can start their approved H-1B employment in the next fiscal year beginning on October 1. Prior to the rule change an F-1 student in a cap-gap situation would have to leave the U.S. when their OPT expired and return at the time his or her H-1B status became effective at the beginning of the next fiscal year. Depending on when the student's status expires, such circumstances could require the student to remain outside the United States for several months.
How is the cap-gap situation changed under the interim final rule?
F-1 academic students on post-completion OPT maintain valid F-1 status until the expiration of their OPT. Once that OPT has ended, they are authorized to remain in the United States for up to 60 days to prepare for departure. Under this rule, the F-1 status of students is automatically extended when the student is the beneficiary of an H-1B petition for the next fiscal year (with an October 1 employment start date) filed on his or her behalf. The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. If the H-1B petition filed on behalf of the student is selected, the student may remain in the United States and, if on post-completion OPT, continue working until the October 1 start date indicated on the approved H-1B petition. The student may benefit from this provision only if he or she has not violated his or her status.
Employer Responsibilities
To be eligible for this extension, the employer must be registered in the E-Verify program and must agree to notify the designated school official (DSO) at the university/school of the termination of the employment within 48 hours of the termination. The E-Verify program is a free, easy-to-use web-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). The E-Verify program currently is the best means available for employers to determine employment eligibility of new hires and the validity of their Social Security Numbers. E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 with records contained in SSA and DHS databases to help employers verify identity and employment eligibility of newly-hired employees.
What must a student do after being granted the 17-month STEM extension?
The student must report to his or her DSO (within 10 days) any change in:
Legal name
•Residential or mailing address
•E-mail address
•Employer name
•Employer address
Note: The student must also report to his or her DSO every six months, confirming the information listed above; even if there have been no changes. The requirement to report continues if the student's 17-month STEM extension is extended further by the automatic cap-gap extension.
Conclusion
The final interim rule provides some much needed relief to students on F-1 OPT and their U.S. employers who are caught up in situations caused by insufficient H1B numbers and the cap gap.