Interim Final OPT Rule Updates

Please stay tuned to this page for updates regarding the OPT interim final rule, which will be posted as they become available.

On April 8, 2008, DHS published an interim final rule that changes several key aspects of F-1 optional practical training (OPT). This is an interim final rule with request for public comment. The rule is effective April 8, 2008. Written comments must be submitted to DHS on or before June 9, 2008.

Read the Interim Final Rule Published in Federal Register and a brief NAFSA summary.

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Updates

May 2, 2008
NAFSA posted a Practice Advisory explaining the H-1B cap-gap provision.


April 29, 2008
SEVP posted an updated version of its STEM Designated Degree Programs List. The first STEM Designated Program List posted on the DHS Web site inadvertently omitted code 14.2501, Petroleum Engineering. SEVP corrected this omission in its latest posting of the list, which now properly lists code 14.2501. However, the latest SEVP list now omits code 14.0701, Chemical Engineering, which we believe is another inadvertent omission. NAFSA has contacted SEVIS.source to report this.


April 26, 2008
The Student and Exchange Visitor Program (SEVP) issued a 30-page policy guidance document to explain SEVP's understanding of the April 8, 2008 interim final rule on optional practical training.


April 24, 2008
SEVIS has not yet been programmed to allow DSO recommendations for OPT to be made during the 60-day "grace period," even though the regulations now permit it. SEVP has implemented a SEVIS work-around to address this in the interim.


April 23, 2008
Cap-gap. Per AILA liaison [AILA InfoNet Doc. No. 08042264 (posted Apr. 22, 2008)], USCIS has confirmed that employers may use the same process to convert either pending or approved consular processing petitions to change of status in USCIS Process To Convert Consular Notification Request To Change Of Status for Cap-Gap Eligibles

Question: Due to the efficiency of USCIS on premium processing cases, members are already receiving approvals on some cases where consular processing was requested. Can these cap-gap e-mails still be used if the case has been approved?

USCIS response: Yes, use the same e-mail address and process whether the case is approved or still pending.

April 20, 2008
Cap-gap. USCIS Allows Cap-Gap Eligibles To Convert Consular Notification Request To Change Of Status

The new rule granting "cap-gap" extensions to F-1 students who applied for a FY 09 H-1B number limits the cap-gap extension to beneficiaries of H-1B petitions who requested change of status. Since the cap-gap rule was published after the FY 09 H-1B filing season opened, however, many beneficiaries had applied for consular notification rather than change of status, following guidance applicable under the prior rule. To address this, USCIS developed a policy that allows the petitioning employer to convert "consular processing" requests to "change of status," so that the beneficiary can benefit from the new cap-gap provision. Employers must make such requests within 30 days of the issuance of the petition receipt notice, by e-mailing the Service Center handling the petition. See the USCIS notice for further details.


April 20, 2008
SEVP and USCIS representatives provided additional guidance on the April 8, 2008 interim final OPT rule, in an April 17, 2008 teleconference with NAFSA.


April 11, 2008
SEVP and USCIS representatives provided additional guidance on the April 8, 2008 interim final OPT rule, in an April 11, 2008 meeting that NAFSA attended.


April 9, 2008
A new Form I-765 is now required, and is available on the USCIS Web site at www.uscis.gov/I-765. The prior version of the form will be accepted only through May 8, 2008. The form and instructions have been changed to implement the new OPT regulations.  See NAFSA's Practice Advisory. Changes include:

• The eligibility code for an F-1 student seeking optional practical training (OPT) has been changed. The eligibility code (c)(3)(i) will no longer be used and has been replaced with the following three codes: (c)(3)(A) for pre-completion OPT, (c)(3)(B) for post-completion OPT, and (c)(3)(C) for a 17-month STEM OPT extension.
• Item 17 asks for information needed to process applications for the 17-month STEM OPT extension, including spaces for the degree conferred and the employer's E-Verify Company or Client Identification Number.
• The instructions to the form state that a student applying for the 17-month STEM OPT extension must also submit "a copy of your degree reflecting the conferred degree as well as your major field of study."