Background Image

New OPT Rules in Effect

In this Section
 

Updated 4/25/2008 

On Thursday, April 17, 2008 – SEVP & USCIS officials held a teleconference with the National Association of Foreign Student Advisors (NAFSA). The responses were verbal and are subject to change – however – they do offer a bit more information on the extension rules. Please see my interpretations below – I will attempt to have the ISSO website updated by the end of today.

‘Cap-Gap’ Provisions:
  • The extension for the cap-gap begins on the date the H1B application was filed – not the receipt date 
  • The automatic extension terminates when USCIS rejects – denies – or revokes the H1B petition. In this case – as long as you have not otherwise violated status - you still have a 60 day grace period after the termination to depart the US – change degree level – transfer – change to another visa status. 
  • USCIS & SEVP are currently developing a policy on how to document the extension to prove you are in valid status for travel – driver’s license renewal – completion of the I-9 and other processes that require proof of status and work authorization. A temporary solution will be a notation on the I-20. 
  • Students under the ‘cap-gap’ extension will still need to follow mandatory reporting of US residence and employer information with the ISSO. 
  •  Under the cap gap extension – a student may work for any employer, including the same employer held under the original OPT authorization 
  • The employer who filed the H1B petition for the 2009 fiscal year w/ a start date of 10/1/2008

17 months STEM Extensions: the 17 month extension is only possible one time per lifetime – a student on STEM extension is not eligible more than once regardless of degree level.

  • The 17 month extension is only possible one time per lifetime - a student on STEM extension is not eligible more than once regardless of degree level
  • The extension is only granted in one 17 month period and cannot be split into 2 periods. 
  • Students on pre-completion OPT will not be eligible for the extension. 
  • Degrees will be verified for STEM majors by viewing the CIP code listed on the I-765 and the I-20. 
  • It is recommended that a statement from the employer be included in the application regarding how the employment relates to the STEM field. 
  • Applications for the extension should be filed with the USCIS Service Center w/ jurisdiction over the address where the student currently resides, not where the first I-765 for regular OPT was filed. 
  • You are able to submit for applications filed under (c)(3)(C) 
    • Unofficial transcripts 
    • Offical Transcripts 
    • Copy of the degree as long is states the program of study 
  • You are able to change employers during the 17 month extension – however – it is not advised to do so while the I-765 is pending since the application names the specific employer 
    • Note: It is advised to consult with an attorney before you make a change in employers 
  • You must still report any changes in employer to the ISSO 
  • You are not able to work with employers who are not registered with E-verify while on the 17 month extension.

Unemployment Provisions:

  • Unemployment accruals do not apply to any periods of unemployment before April 8, 2008. The 90 day ‘clock’ begins on April 8, 2008. 
  • Future benefits may be affected should you accrue more than 90 days of unemployment after April 8, 2008. However – it is strongly recommended that you document any period of unemployment. For example – document interview dates/times – resume submissions. This could be used for consideration on future benefit filings. 
  • Unemployment provisions do not apply to students on pre-completion OPT who are maintaining full-time enrollment and are still pursuing their studies.
 

 ************************************************************************************************

On April 8, 2008, The Department of Homeland Security published the Interim Final Rule that makes significant changes to Post-Completion Optional Practical Training for F-1 students. This rule is in effect as of April 8, 2008 and is requesting a period of public comment. All written comments must be submitted to the Department of Homeland Security by June 9, 2008.

Highlights of the OPT Interim Final Rule: 
  1. Certain STEM degree holders can extend their current 12 month OPT by 17 months for a total of 29 months of OPT
  2. Students on OPT with pending or approved H1B visa applications will no longer be subject to the H1B 'cap-gap' situation since OPT authorizations will be extended to cover the time period until the October 1 start date.
  3. The filing deadline has changed
  4. There are new reporting requirements for the employer and the student while on optional practical training
  5. Post-completion OPT will now be dependent on employment. This means that limited periods of unemployment will be allowed.
  6. Duration of employment authorization has been clarified


Details of key provisions to the Interim Final Rule:

Extension to 29 months for STEM students - Students currently on 12 months of optional practical training can extend their training by 17 months for a total of 29 months.

  •   This only applies to degree holders in Science, Technology, Engineering, Mathematics (STEM) in the following fields:
    • Actuarial Science
    • Computer Science Applications (some exceptions apply)
    • Engineering
    • Engineering Technologies
    • Biological & Biomedical Sciences
    • Mathematics & Statistics
    • Military Technologies
    • Physical Sciences
    • Science Technologies
    • Medical Scientist (MS, PhD only)

Note: Certain fields that generally fall under science and engineering are currently being excluded from the 17 month extension

Other requirements under the 17-month extension...

  • Student must currently be participating in a 12 month period of OPT and working for a U.S. employer in a job directly related to your field of study
  • Students must have completed a bachelor's, master's or doctoral degree in a field listed on the Department of Homeland Security STEM Designated Degree Program List
  • Students must have a job off or be employed by an employer registered with the E-Verify employment verification system
  • Students must not have previously received a 17-month OPT extension after earning a STEM degree
  • The student must apply for the extension through the International Students & Scholars Office who will verify the students eligibility and certify that the degree awarded is on the DHS STEM Designated Degree Program List.
  • Students will also comply with additional reporting requirements to report any changes to their US address and employer information to the International Students & Scholars Office within 10 days. (See specific reporting requirements below)
  • Employers must also agree to report the termination or departure of any international student on OPT to the International Students & Scholars Office


H-1B cap-gap extension of D/S and work authorization until October 1
. Duration of status and work authorization will be extended for a student on OPT, who is the beneficiary of a timely-filed H-1B petition requesting an employment start date of October 1 of the following fiscal year. This would apply to all students on OPT, not just STEM students. The extension of duration of status and work authorization would automatically terminate upon the rejection, denial, or revocation of the H-1B petition filed on the student's behalf.

Changes to OPT filing deadline - students will now be able to file up to 90 prior to the program end date noted on their I-20 and up to 60 days after their program end date.

Reporting Requirements -

  • All students on OPT are require to report changes to the ISSO:
    •  
      • any change to your name and/or your address (home or in the United States)
      • your employment infromation and any interruption to that employment
  • In addition - all students with approved 17 month extensions:
    • Must report to the ISSO within 10 days any change of
      • legal name
      • residental or mailing address
      • employer name and address
      • loss of employment
    • Must make a validation report of the above to the ISSO every 6 months starting from the date the extension begins and will end when the your F-1 student status ends, you change educational levels, you transfer to another school or the extension ends - whichever comes first. This is confirmation that your information is current and accurate and is due within 10 days of the reporting date.


Post-completion OPT is now dependent upon employment - in order to maintain status while on optional practical training - students are now limited to the amount of time they can be unexmployed. Clarifcation on how this will be caputured is still under evaluation.

  • Students on the initial 12 month OPT period cannot accrue more than a total of 90 days of unemployment
  • Students granted a 17 month extension cannot accrue more than a total of 120 days of unemployment


Duration of employment authorization -

  • Employment authorization will begin on the date requested or the date the employment authorization is adjudicated - whichever is later.
  • Exception: The 17-month extension period will not begin until the day after the expiration of the inital post-completion employment authorization and will end 17 months later - regardless of when the extension was approved.


Before the ISSO can begin taking applications for extensions form I-765 and SEVIS must be updated to accomdate employer and STEM degree information. Please check back often for updates.

Thank you to NAFSA for the summary of key provisions which was used in compiling the information above.