Visa Lawyer Blog
The U.S. Department of Homeland Security (DHS) issued an interim final rule on April 8, 2008, extending Optional Practical Training (OPT) for F-1 students with science, technology, engineering, or math (STEM) degrees by an additional 17 months; from 12 months to 29 months. F-1 students with STEM degrees are able to obtain this OPT extension without having H1B petitions filed on their behalf. The memorandum also gives clarification on the “cap-gap” for students who have pending H-1B applications. Here are the key changes:
* OPT extension for STEM students
* H-1B cap-gap extension of D/S and work authorization until October 1
* I-765 filing window
* Duration of employment authorization
* Reporting Requirements while on OPT
* Limited Periods of Unemployment to Maintain Status
The student’s employer must be enrolled in the E-Verify system. Furthermore, in order to qualify, a student must apply at least 90 days before his/her post-OPT ends. This must be done within time. To apply for an extension, students must file Form I-765, Form I-20 endorsed by the student’s designated school official, the application fee, and a copy of the student’s degree. Upon being granted a STEM extension, students must notify his/her DSO via email within 10 days of changes in: employment end date, employment start date, supervisor name and contact information, job title, employer address and name, email address, mailing address, address of residence, and legal name. In addition to reporting to a DSO within 10 days, a student must also report to the DSO every six months via email, regardless if there is a change or not.
H-1B Cap-gap extensions:
A cap-gap happens when a student’s F-1 status and work authorization expire before he/she can start H-1B employment at the beginning of the upcoming fiscal year (October 1st of every year). Essentially, this forces a student to leave the United States and then come back when his/her H-1B visa becomes valid. Often times, cap-gap happens when an H-1B employer files a petition for a beneficiary after his/her post-OPT expires. The earliest an employer can submit an H-1B petition for work starting October 1st of a fiscal year is on April 1st of the previous fiscal year (6 months prior).
The problem with the cap gap is that it forced F-1 students who already had approved H-1B petitions but whose post-OPT ended before October 1 to leave the United States and apply at a consulate office in order to seek readmission into the United States under an H-1B. Under old cap gap extension rules, a student was allowed to stay in the United States until October 1st, but could not work until the start of his/her H-1B visa. Furthermore, this extension previously had to be reported in the Federal Register, as it was not automatic. If a notice was not published in the Federal Register, the student was required to leave the United States and apply for readmission under H-1B status.
The interim final rule for the cap-gap situation has modified these regulations. First, an F-1 student’s status is valid until his/her OPT ends; they can stay in the United States for up to 60 days thereafter. Second, the cap-gap extension is automatically granted when the H-1B cap is reached and an employer has filed an H-1B application for a beneficiary during the period H-1B applications are accepted. If a student’s H-1B is not selected, then the automatic extension ends when USCIS finishes its random selection. If a student’s H-1B is selected, then he/she can remain in the United States and continue to work until the start of his/her H-1B visa in October. Students who violate their status will not be eligible to take advantage of this extension.
Also under this new rule, F-1 students can apply for post-OPT 90 days before they finish and up to 60 days after they have finished their degree. Similarly, the new interim rule also allows H-1B employers to file petitions during an F-1 student’s 60 day grace period.
We hope that above information must have clarified several facets of OPT and related aspects.