CIS Issues New Rule Regarding OPT Program
April 14, 2008

The OPT (Optional Practical Training) program allows nonimmigrants who are in the United States – usually following the completion of their F-1 program – to temporarily, and with authorization, work in their field of training for one year.

The Department of Homeland Security has made two changes to the OPT program, both of which went into effect on April 8. From the standpoint of an advocate, these are positive changes for both employers and foreign students studying in the U.S.

  1. Extension of OPT status for certain fieldsOne of the changes affects persons currently holding OPT status, whose degree and occupation are in the STEM (science, technology, engineering or mathematics) field. STEM students will now have the option of extending OPT status for 17 additional months. This means that STEM students/graduates could hold OPT status for up to 29 months.Persons who are eligible for this extension:
    • currently in OPT status (must apply for the extension before status expires)
    • completed a bachelors, masters or doctorate degree program in a STEM field (computer science applications, actuarial science, engineering, engineering technologies, biological and biomedical sciences, mathematics, statistics, military technologies, physical sciences, medical sciences, science technologies).
    • will work for an employer enrolled in the E-Verify Program (Department of Homeland Security’s new system for determining employment eligibility, where Social Security and Immigration databases are used together to verify information on an Employer’s Eligibility Verification Form I-9).

    This is an “interim” rule, meaning that there will be a comment period for the public to make suggestions about the changes. I imagine that there will be much discussion about what type of degree should and should not be considered a STEM degree.

    In order to apply for the extension of the OPT EAD, the student must:

    • obtain a recommendation from their school’s DSO (Designated School Official)
    • complete and submit Form I-765 (including $340.00 filing fee payment).

    There is a condition for this extension: every six months the OPT student must check in with the DSO to confirm information such as current address, current employer, employer’s address, job title, start date of job etc. This ensures that no OPT status holder is falling through the cracks by working outside of a STEM field or working for a non E-verify employer.

    As I said, this change is good news for employers and foreign workers. It addresses, albeit in a small way, what many high-tech companies have been complaining about regarding the short supply of temporary work visas available for non Americans, and not enough American high-tech workers to fill key positions.

  2. F-1/H-1B “Cap-Gap” ReliefThe other change would affect a significant number of F-1/OPT status holders who have had H-1B petitions filed on their behalf. In the past, many F-1 visa holders have had their OPT status expire (late spring or early summer) while waiting to begin work (October 1) as the beneficiaries of approved H petitions. Such persons have had to return their home country when their status expired and go through nonimmigrant visa processing at a U.S. consulate to reenter months/weeks later with their H-1B visa. In some cases, people could obtain an extension of their F-1 status while awaiting the start of the fiscal year, however this did not include an extension of their OPT status, meaning they could not work while waiting.

    NOW, with this new rule, a person will have their OPT status automatically extended while waiting for the processing and approval of an H-1B visa petition. If the petition is denied or revoked, the OPT status extension will be terminated immediately. However, if the petition is approved, this means that the person can remain in the U.S. and continue working while waiting for the H-1B October 1 start date.

    In order to be eligible from this ‘cap-gap’ relief, the person cannot have violated his/her F/OPT status at any time.

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