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USCIS Publishes New Regulation Extending Post-Graduation Optional Practical Training (OPT) Authorization for Certain F-1 Students

On April 8, 2008 the Department of Homeland Security published a new rule that affects F-1 students in a number of important ways:

  • For a student whose H-1B petition has been selected in the FY09 lottery,  but whose post-graduation Optional Practical Training (OPT) authorization will expire prior to the 10/1/08 effective date of the H-1B, the rule creates an automatic extension of their student status and work authorization until the H-1B takes effect on 10/1.
  • The rule also extends the maximum period of OPT from 12 months to 29 months for F-1 students under certain circumstances (see below). 
  • This rule also allows students to apply for OPT as early as 90 days before conclusion of their studies, and as late as 60 days after conclusion of their studies.  (Previously, the application for employment authorization – Form I-765 – had to be filed prior to the conclusion of studies).
  • his new rule specifies that the maximum aggregate period of unemployment allowed is 90 days for students on an initial 12-month OPT.  This maximum period increases by an additional 30 days for F-1 students who have an approved 17-month OPT extension.  In addition, the rule specifically allows for time for job searches or a break when switching employers.

 “Cap-Gap” Automatic Extension

In general, USCIS will not approve a change of status request if there is a gap between a beneficiary’s authorized period of admission and the requested start date.  For many foreign students, this is a serious problem because their OPT will end during the spring or summer, but they cannot request a new H-1B start date prior to October 1st.  Specifically, F-1 students who are the beneficiaries of approved H- 1B petitions with an October 1st start date, but whose period of authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day grace period) expires before October 1st have a gap between their authorized stay and employment, thereby rendering them ineligible for a change of status from F-1 to H-1B. This situation is commonly referred to as the “cap-gap.”  An F-1 student in this situation would have to leave the United States and return October 1st when their H-1B starts.
 
This interim rule amends USCIS procedures by extending the authorized period of stay, as well as work authorization, of any F-1 student with OPT who is the beneficiary of a timely-filed H-1B change of status petition that has been granted by, or remains pending with, USCIS.  This automatic extension of status and work authorization terminates on October 1 of the fiscal year for which the H-1B visa has been requested.  The automatic extension also terminates upon the rejection, denial, or revocation of the H-1B petition filed on such F-1 student's behalf.

Furthermore, while an F-1 student whose OPT expires within 60 days of the October 1st requested start date was already able to remain in the U.S. and request a change of status because of their 60-day “grace period” (i.e., OPT expires on or after August 1st), this new rule will now automatically extend their work authorization and allow them to continue working until their H-1B takes effect on October 1st.

Unfortunately, because USCIS had previously announced that it would not approve change of status requests for “cap-gap” H-1B petitions, such petitions were filed as “consular notification,” intending for the beneficiary to leave the U.S. after their 60-day grace period expires and return within 10 days of the October 1st start date.  USCIS has recently acknowledged this quandary, and has indicated that it may allow amendments to pending H-1B petitions to request a change of status and take advantage of the new “cap-gap” automatic extension.  If and when USCIS announces that they will accept such amendments, we will immediately notify all affected clients.

Requirements for Students Requesting OPT Extension Beyond 12 Months

In general, an F-1 student who has been enrolled on a full-time basis for at least one full academic year in a college or university certified by the Student and Visitor Exchange Program (“SEVP”) is eligible to apply for up to 12 months of OPT to work for a U.S. employer in a job directly related to the student’s major area of study.  This new rule will allow certain F-1 students who currently have an approved 12-month post-completion OPT to apply for an additional 17-month extension of OPT.  To qualify for such an extension, the student’s degree, as shown in the Student and Exchange Visitor Information System (“SEVIS”), must be a bachelor’s, master’s, or doctorate degree with a degree code that is on the current Science, Technology, Engineering, Mathematics (STEM) Designated Degree Program List:

  • Actuarial Science
  • Computer Science
  • Entry/Microcomputer Applications
  •  Engineering
  • Engineering Technologies
  • Biological and Biomedical Sciences
  • Mathematics and Statistics
  • Military Technologies
  • Physical Sciences
  • Science Technologies
  • Medical Scientist (M.S. or Ph.D. only)


Students who wish to extend OPT must request that their Designated School Official (“DSO”) recommend the 17-month OPT extension. DSOs recommending the extension must verify the student’s eligibility, certify that the student’s degree is on the STEM Designated Degree Program List, and ensure that the student is aware of his or her responsibilities for maintaining status while on OPT.  The DSO must make the recommendation to extend OPT for the student through SEVIS.  Once the DSO recommends a student for the extension, the student must submit a Form I-765 to USCIS.  The rule also allows such an F-1 student who has properly filed an I-765 for OPT extension to maintain continuous employment for up to 180 days while USCIS adjudicates the I-765.

Requirements for Employers Employing F-1 Students With OPT Extended Beyond 12 Months

Unfortunately, only students who are employed by employers who have enrolled and are classified as “in good standing” in USCIS’ E-Verify program will be eligible for the 17-month extension of OPT.  The E-Verify program is an Internet-based DHS pilot program that compares information contained on the Form I-9 with records contained in SSA and DHS databases to verify identity and employment eligibility of newly-hired employees.   In addition, DHS will only extend post-completion OPT for students employed by employers that agree to report when an F-1 student on extended OPT terminates or otherwise leaves his or her employment with the employer prior to end of the authorized period of OPT.  The employer must report this information to the DSO of the student’s school no later than 48 hours after the student leaves employment.

The rule also creates additional reporting obligations for students with an approved 17-month OPT.  These reporting obligations are:

  • Within 10 days of the change, the student must report to the student’s DSO a change of legal name, residential or mailing address, employer name, employer address, and/or loss of employment.
  • The student must make a validation report to the DSO every six months starting from the date the extension begins and ending when the student’s F-1 status ends, the student changes educational levels at the same school, or the student transfers to another school or program, or the 17-month OPT extension ends, whichever is first.  This report is due to the student’s DSO within 10 business days of each reporting date.

*IMPORTANT NOTE ON E-VERIFY*

Our office cannot recommend or discourage enrollment in the DHS E-Verify Program.  However, we recommend that any company interested in the program understand the substantial requirements involved, including:

1.    All new hires, including U.S. Citizens, must be verified through the program within three days of hire.  This is a separate requirement from the Form I-9 or other state employment requirements.

2.    The employer must strictly follow specific procedures if there is a “tentative nonconfirmation” regarding a new hire’s employment authorization.

3.    The employer must provide notice to prospective employees of enrollment in E-Verify, including in online recruitment.

An employer should not underestimate the potential burden involving “tentative nonconfirmation” procedures.  The SSA’s Inspector General estimates that there is a 4.1% inaccuracy rate for SSA data.  At that rate, 1 in every 25 new hires with valid work authorization would receive a “tentative nonconfirmation,” requiring the employer and new hire to go through an arduous process to correct their information with SSA and/or DHS. 

E-Verify also presents potential liability to employers, which should be fully explored and discussed with corporate counsel before any decision on the program is made.  While companies might be swayed by the new OPT rules, it is important to review E-Verify fully before making any decisions.

Unanswered Questions

While this new rule may dramatically benefit many F-1 students who currently have or will soon be applying for OPT, there are many questions that remain unanswered.  Such questions include:

  • Exactly who is eligible for the “cap-gap” automatic extension?  Is someone eligible if their OPT expired, but are still within the 60-day grace period at the time of filing the H-1B petition? 
  • Will USCIS allow amendment of the pending H-1B petitions to request a change of status and take advantage of the “cap-gap” automatic extension?
  • What if the student has left the United States after the H-1B petition was filed—will they be able to amend their petition and return prior to October 1st?
  • The new rule suggests that a student must have an approved 12-month period of OPT to be eligible for the 17-month extension.  However, many students receive less than 12-months of post-completion OPT—are students with OPT of less than 12 months in duration eligible for the 17-month extension? 
  • Must students apply for the 17-month extension prior to the expiration of their 12-month OPT, or are they eligible for extension during the 60-day grace period?  What if the student has already left the U.S., are they still eligible for such an extension?

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