On Friday April 4, 2008, USCIS announced an interim rule providing certain students with an opportunity to apply for a 17 month extension of optional practical training (“OPT”). 

1. Additional 17 Months of OPT

Under current rules, students obtaining a degree from a U.S. university may receive up to 12 months of optional practical training. OPT allows the student to work for any employer as long as the employment is related to the degree. In Friday’s rule, the government allows certain students to apply for a second or extended period of 17 additional months of OPT.  These students may receive up to a maximum of 29 months of OPT.

Which students are eligible to apply for the extended 17 month period of OPT?

a)      Students receiving a bachelor’s degree or higher in designated science, technology, engineering or mathematics (“STEM”) fields.

1.      Not all science fields are included.  The degree must be specifically listed. In general, the fields include:

a)      computer science applications

b)      actuarial sciences

c)      engineering

d)      engineering technologies

e)      life sciences

f)        mathematics

g)      military technologies

h)      physical sciences

2.      Many health related field were excluded from list. Specifically, physicians, dentists and nurses were not included and are not eligible for extended OPT. Additionally, individuals with a master’s in business administration were excluded from the list.

b)      Only students working for an employer registered under E-verify may qualify.

c)      Students agreeing to report to the university DSO within 10 days any change in: a) legal name; b) residential or mailing address; c) email address; d) employer name; e) employer address; f) job title or position; g) supervisor name and contact information; employment start date; and employment end date.  Students must also report to the school DSO every six months by email confirming this information, even if there have been no changes.

d)      Employers must report terminations/resignations by students working pursuant to OPT to the school DSO within 48 hours.

2. What should students do to apply for the additional 17 months of OPT?

a)      Contact their university DSO and request extended OPT

b)      The DSO must verify student eligibility, confirm the student’s degree is on the STEM list and update SEVIS

c)      Once the DSO recommends the extension, the student must submit form I-765 to USCIS. Note that form I-765 will need to be amended as the student will need to include the employer’s E-verify registration number, a copy of his degree, updated I-20, passport, visa, I-94 arrival departure card (front and back), copy of current OPT card, photos, fees, etc. We also recommend including a short letter explaining the job offer, title and salary for each employee. The I-765 application must be submitted within 30 days of the DSO’s recommendation.

d)      Students should apply for the 17-month OPT extension at least 90 days prior to the expiration of their current OPT.  Note that the USCIS FAQs list the filing of 90 days in advance of OPT expiration as a requirement. However, the rule itself states that the student may apply for the extension as long as he is in a valid period of post-completion OPT.  This issue will undoubtedly be clarified. However, we recommend students apply 90 days before expiration of their current OPT to be on the safe side.

e)      If a student “timely and properly” files the application for the 17 months of additional OPT, the student’s current OPT work authorization is automatically extended for 180 days while USCIS adjudicates the extension.

3. Additional rules

a)      Periods of unemployment of more than 90 days during the 12 months of OPT create a status violation for the student. The maximum period increases 30 days for students who have an approved 17 month OPT period.

B. Cap-Gap- USCIS Creates Automatic Extension of Student Work Authorization and Status if Certain Types of H-1B Applications are Pending or Approved

All students obtaining degrees (regardless of the type of degree) may obtain 12 months of initial OPT. After the OPT period, students may remain in the U.S. for up to 60 days, but they cannot work during that 60 day period. Many students face a “gap” in their employment authorization and status because their 12 month OPT ends in the summer and the employer’s H-1B application must contain a validity date of October 1 or later. 

For example, assume John Q Public graduated in May 2007 with a MBA.  Also assume he has OPT from June 15, 2007 through June 14, 2008.  The employer submits an H-1B application with a start date of October 1, 2008 (because that is the next fiscal year and the next time H-1B visas will be available).  Because the OPT ends on June 14, 2008 and the 60 day grace period ends August 14, 2008, the student must normally leave the U.S. between August 14, 2008 and October 1, 2008. While abroad, the student must obtain an H-1B visa and then can re-enter the U.S. in H-1B status.  The time between the end of the OPT and October 1 is called the “cap gap”.

In Friday’s interim rule, the USCIS created an automatic extension to bridge the cap gap. 
Specifically, if an employer timely filed an H-1B application with a start date of October 1 and included a change of status request in the H-1B application, then the student’s F-1 status and work authorization are automatically extended until October 1.  If the student’s H-1B application is rejected (i.e. not selected in the lottery) or denied, then the student’s work authorization and student status automatically ends.  Because the interim rule was issued after the April 1 filing date for the majority of H-1B applications, many applications for students facing the cap gap did not include a request for a change of status as they would not have been eligible for it.  It remains to be seen whether the government will allow students to change the case structure post-filing to include a change of status request and obtain the benefit of the interim rule.

If you have any questions regarding these changes, please contact Michelle Ausdemore at 480-362-1212 ext. 203.