OPT Interim Final Rule Update - April 17 2008

OPT Interim Final Rule Update Home Page

During a teleconference on April 17, 2008 with NAFSA, SEVP and USCIS representatives provided some guidance on the April 8, 2008 interim final OPT rule.

Please note: These answers were verbal and are subject to change. SEVP subsequently issued a 30-page policy guidance document to explain its understanding of the interim final OPT rule.

Applying for Regular OPT

• For post-completion OPT, a student may file an I-765 with USCIS up to 90 days before being enrolled for a full academic year.
• For pre-completion OPT, a student may file an I-765 with USCIS up to 120 days before the proposed OPT date if s/he has completed a full academic year.
  • Note: If the student has not completed a full academic year, the student may only file the I-765 for pre-completion OPT up to 90 days before the end of the full academic year.
• If an I-765 is submitted before the window allowed for that type of OPT, the I-765 will be denied and the fee will not be returned.
• The new rule also applies to students who were already within their grace period as of April 8, 2008 (whose program end date was between 02/08/08 and 04/07/08).
  
• Although it is now permitted by regulation, SEVIS is not yet programmed to allow the DSO to update SEVIS with an OPT recommendation during the 60-day grace period. See the NAFSA Practice Advisory Applying for OPT during the 60 Day Grace Period for information on a work-around.

Cap Gap Provisions

• The extension for “cap gap” status and work authorization officially commences on the date of filing the H-1B (the date received by USCIS), not the receipt date.
• If a student’s program end date was before the filing of an H-1B petition on April 1, 2008, but s/he is still within the 60 day grace period as of April 8, 2008, the student's F-1 status would be extended under this provision. However, it is not clear whether the expired work authorization would be revived. USCIS and SEVP are consulting with counsel.
• For a student who is the beneficiary of an H-1B petition for a cap exempt (higher education) employer, USCIS will likely NOT recognize that s/he is eligible for the extension of status & work authorization under the cap gap provision of this rule. The rationale is that a cap exempt employer can choose a start date that matches the end of authorized F-1 status or work authorization. USCIS and SEVP are consulting with counsel.
• The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. However, the student would have a grace period after the termination during which s/he is authorized to remain in the United States for up to 60 days to prepare for departure from US, change degree level, transfer, change status, etc. as long as the student has not otherwise violated status.
• USCIS and SEVP are developing a policy regarding documentation that would prove that a student’s status and authorization have been extended. Most likely, it will involve a SEVIS data fix with notation on the I-20, e.g. “F-1 status and work authorization extended to…(insert date).”
• Under the new cap gap extension, a student may undertake any employment that directly relates to the field, including employment with the employer from his/her original OPT period or an employer who has filed an H-1B petition with the student as the intended beneficiary.

Eligibility for 17-month STEM OPT Extension

• The 17-month extension is only possible one time per lifetime; a student is NOT eligible to receive an extension more than once, regardless of degree level.
• The extension can only be granted in one 17 month period; the period cannot be “split” into 2 periods.
• Students on “pre-completion” OPT will NOT be eligible for the extension
  • For a student who applied for “pre-completion” OPT after finishing all course requirements but before being conferred the degree, and then continued the OPT after the program end date, SEVP will consider for a limited time allowing a data fix of the program end date so that these students will be considered “post-completion” in SEVIS.
• USCIS will determine whether a student’s degree is eligible for the STEM extension by ensuring that the CIP code listed on the I-765 and/or the I-20 is one of the fields listed in the DHS STEM Designated Degree Programs List.
  
  • When asked to list the degree in item #17 of the Form I-765, the student should list the major as it appears in SEVIS and on the I-20 (i.e. the name associated with the eligible CIP code), not the name used by the institution.
  • Note: the I-20 only lists the primary major. If the STEM major is the student’s secondary major:
    • DSO should handwrite on the I-20 “Secondary major CIP code: (list CIP code), (title of major as it appears in SEVIS)”
    • Student needs to include documentation of the major that relates to the CIP code which qualifies the individual for the extension.
• Since the employment must directly relate to the STEM field, it is recommended that the student include a statement from the employer regarding how the employment relates to the STEM field.
• The student does not need to provide any documentation that an employer is an E-Verify employer; the only thing required for the I-765 is the employer’s E-Verify number and name as listed in E-Verify.
• There has been some confusion surrounding a statement in the supplementary information to the rule that "only new hires can be verified in E-Verify once an employer registers with the program." USCIS confirmed that this does not mean that a current OPT employer would have to "fire and re-hire" a student employee, but just that the student would not have to be "verified" again through E-verify, as long as the employer follows the normal I-9 obligations.

Applying for the 17-month STEM OPT Extension

• The student should file the I-765 with the USCIS Service Center with jurisdiction over the address where the student currently resides, not where the first I-765 for regular OPT was filed.
• A student may apply for the 17-month STEM OPT extension anytime during the regular period of post-completion OPT up to the expiration date of the student’s current OPT employment authorization. Students are encouraged to file early so that they receive the new EAD before the end of the regular period of post-completion OPT.
• The new I-765 instructions state that a “copy of the degree” must be submitted for applications filed under (c)(3)(C). USCIS clarified that this could include:
  • Official transcripts
  • Unofficial transcripts
  • Copy of the diploma as long as it states the program of study

Changing Employers on a 17-month Extension

• A student may change employers during the 17 month extension. However, USCIS and SEVP advise against changing employers while the I-765 is pending, since the I-765 names a specific employer.
  • Note: Students are advised to consult with an attorney regarding the effect of changing to an employer that is not the employer named on the I-765.
• The student must report the change in employer to the DSO, and the DSO must update SEVIS accordingly.
• Students may NOT be concurrently employed at a non-E-verify employer. While on a 17-month extension, the student is only allowed to be employed by employers who are registered with E-verify.

DSO Responsibilities for Students with “Cap Gap” Extension

• DSOs will have the same responsibilities toward students with “cap gap” extensions.
• SEVP and USCIS are looking into ways to notify a DSO that a student is an intended beneficiary of an H-1B petition and eligible for the “automatic extension.”
• Under the cap gap extension, the student may work for any employer, including (but not limited to):
  • the same employer as s/he had under the prior OPT authorization,
  • the employer who filed the H-1B petition for the 2009 fiscal year with an expected start date of 10/1/2008.

Documentation of Status/Authorization

• Since neither the I-20 nor EAD card will reflect the “automatically extended” status and/or work authorization of F-1 students who are intended beneficiaries of pending H-1B, SEVP and USCIS are looking into documentation to facilitate travel, driver’s license renewal, completion of the I-9, and other processes that require proof of status and work authorization. Most likely, SEVP will create a temporary solution with a notation on the student’s I-20.

Applicability of Unemployment Provisions

• SEVP confirmed that the unemployment provisions of the regulation do not apply to any periods of unemployment before the effective date April 8, 2008. The 90 day "clock" starts on April 8, 2008.
• Students should be advised that more than 90 days of unemployment after April 8, 2008 may affect eligibility for future benefits. If the student applies for a benefit and has more than 90 days of unemployment AFTER April 8, 2008, the benefit may be denied because of that unemployment. A student may provide documentation for the adjudicator to consider any extenuating circumstances.
  • Note: SEVP stated that it is not looking to systematically put students out of status who were already on OPT prior to the effective date of April 8, 2008.
• Unemployment provisions do NOT apply to students on pre-completion OPT who are maintaining full-time enrollment and are still pursuing their studies.