USCIS Announces Changes to the F1 OPT Regulations
On April 8, 2008, the Department of Homeland Security (DHS) announced changes to key aspects of the regulations governing F-1 Optional Practical Training (OPT.) The rule became effective on Monday, but DHS will be accepting comments on the rule until June 9, 2008. F-1 students currently in the United States will also be able to take advantage of the rule's new provision. The new rule contains changes in the following areas:
- H-1B Cap Gap Eliminated for Some OPT students
- Filing Deadline for OPT Applications Extended to 60 days following completion of Studies
- New Reporting Requirements for all students while on OPT
- Post-Completion OPT will now be dependent on employment.
- Maximum length of OPT extended to 29 months, but ONLY for certain STEM degree holders. [STEM=Science, Technology, Engineering and Mathematics]
H-1B Cap Gap Eliminated for Some OPT students
H-1B Cap Gap Eliminated for Some OPT students Duration of status and work authorization will be extended until October 1st for a student on OPT, who is the beneficiary of a timely filed H-1B petition and an application for change of status from F-1 to H-1B status. This would eliminate the "cap gap" and would apply to all students on OPT. 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.
Filing Deadline for OPT Applications Extended to 60 days following completion of Studies
Under the current rule, the I-765 must be filed no later than the student's program end date, and it is not specified how soon before the program end date the application can be filed. Under the new rule, a student will be able to file his or her I-765 between 90 days prior to his or her program end date and 60 days after his or her program end date.
New Reporting Requirements while on OPT
All students on OPT are required to report to the DSO within 10 business days of any changes:
- Any change of name or residential address
- name and address of employer
- Any interruption of such employment If you have or are applying for summer or post-completion OPT, you will need to provide this information to ISO. You will receive an email from ISO in the next couple of weeks with instructions on how to provide ISO this information.
Limited Periods of Unemployment to Maintain Status
During post-completion OPT, F-1 status is dependent upon employment. Students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT carried out under the initial post-completion OPT authorization. Students granted a 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total 29-month OPT period.
OPT extension to 29 months for STEM students.
The 12-month limit on F-1 OPT will be extended by 17 months, for a total of 29 months, for students holding degrees in the STEM (Science, Technology, Engineering, Mathematics) fields listed below:
- Actuarial Science.
- Computer Science Applications
- Engineering Technologies
- Biological and Biomedical Sciences
- Mathematics and Statistics
- Military Technologies
- Physical Sciences
- Science Technologies
- Medical Scientist (MS, PhD)
In addition to earning a degree in one of the STEM fields noted above, there are additional requirements for the 17-month extension - some requirements fall to the student to fulfill and others to the employer.
- Student must be currently participating in a 12-month period of OPT, working for a U.S. employer in a job directly related to the student's major area of study.
- Student must have successfully completed a bachelor's, master's, or doctoral degree in a field on the DHS STEM Designated Degree Program List, from a SEVIS-certified college or university.
- Student must have a job offer from an employer registered with the E-Verify employment verification system.
- The student has not previously received a 17-month OPT extension after earning a STEM degree.
- ISO must recommend the 17-month OPT extension in SEVIS, after verifying the student's eligibility, certifying that the student's degree is on the STEM Designated Degree Program List, and ensuring that the student is aware of his or her responsibilities for maintaining status while on OPT.
- Student will have to apply for the 17-month extension on Form I-765 with fee.
- Students who timely file an application for the 17-month OPT extension will be able to continue employment while the extension application is pending, until a final decision on the I-765 or for 180 days, whichever comes first.
- The employer must agree to report the termination or departure of the student to ISO or through "any other means or process identified by DHS." An employer must consider a worker to have departed when the employer knows the student has left employment, or if the student has not reported for work for a period of five consecutive business days without the employer's consent.
- Student must report to ISO within 10 days of any change of: legal name, residential or mailing address, employer name, employer address, and/or loss of employment.
- Student must make a validation report to ISO 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, the student transfers to another school, or the 17-month OPT extension ends, whichever is first. The validation is a confirmation that the student's name and address, employer name and address, and/or loss of employment is current and accurate.
For additional information about this rule see the links below. ISO will post additional information as it becomes known to us.
Interim Final Rule Published in Federal Register
OPT 29 Month Rule Compiled and Annotated by NAFSA
USCIS FAQ'S on new OPT rules