OPT Extension to 29 Months for STEM Students

On April 8, 2008, Department of Homeland Security (DHS) published the interim final rule that changes several key aspects of F-1 optional practical training (OPT). This is an interim final rule with request for public comment. The rule is effective April 8, 2008.

The rules affect two groups of students: students who are degree holders in specific fields referred to as STEM and students who have a gap between the ending date of their OPT their approval or rejection of an H-1B with an effective date of October 1.

The 12-month limit on F-1 Optional Practical Training (OPT) will be extended by 17 months, for a total of 29 months, for certain STEM degree holders (Science, Technology, Engineering, Mathematics) in the following fields:

• Actuarial Science
• Computer Science Applications (Data Entry/Microcomputer Applications are excluded)
• Engineering
• Engineering Technologies
• Biological and Biomedical Sciences
• Mathematics and Statistics
• Military Technologies
• Physical Sciences
• Science Technologies
• Medical Scientist (MS, PhD)

There are certain degrees that are related to these fields that are excluded. At this time, ISSP has not determined which of all programs at Emory University which exactly are eligible for the extension. We will gather the information from the Classification of Instructional Programs and provide an update via our website, www.emory.edu/ISSP.

Other requirements for 17-month extension:

Additional requirements for the 17-month extension include:

• Student must be currently participating in a period of standard 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. If your employer is not registered in the E-Verify System, then you will not be able to obtain the extension.
• The student has not previously received a 17-month OPT extension after earning a STEM degree.
• The DSO 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 the DSO 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.

H-1B Cap Gap Extension

Duration of status and work authorization will be extended for a student on OPT, who is the beneficiary or a timely filed H-1B petition requesting an employment start date of October 1 of the following fiscal year. This would apply to all students on OPT, not just STEM students. 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 behalf of the student.

Conclusion

Under the new rules the following changes have been made for all students on post-completion practical training. F-1 students currently in the United States will also be able to take advantage of the rule's new provisions once they become effective. Your adherence to the following changes will ensure the success of these new enhancements available to student:

I-765 Filing Window

The rule sets new deadlines for filing Form I-765 for post-completion OPT. An I-765 for standard post-completion OPT can be filed up to 90 days before the program end-date and up to 60 days after the program end-date, provided that it is filed within 30 days of the date the DSO enters the OPT recommendation into SEVIS. Applications for the 17-month STEM extension must be filed before the current EAD expires.

Duration of Employment Authorization

Employment authorization will begin on the date requested or the date the employment authorization is adjudicated, whichever is later.

Exception: The employment authorization period for the 17-month OPT extension begins on the day after the expiration of the initial post-completion OPT employment authorization, and ends 17 months later, regardless of the date the actual extension is approved.

Reporting Requirement While on OPT

All students on OPT are required to report to the DSO:

• Any changes of name or address
• Any interruption of employment

In addition, students with an approved 17-month OPT extension must report to the student's DSO within 10 days of any change of:

• Legal name
• Residential or mailing address
• Employer name and address
• Loss of employment
• Must make a validation report to the DSO 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. The report is due to the DSO within 10 business days of each reporting date

Limited Periods of Unemployment to Maintain Status

During post-completion OPT, F-1 status is dependent upon employment.

• Students cannot have more than 90 days aggregate unemployment.
• Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.
• Students who have OPT extended due to the cap gap provisions continue to accrue unemployment time and are subject to the 90-day limitation on unemployment.
• The limits on unemployment do not apply retroactively. Only unemployment beginning on or after April 8, 2008 will count.
• Each day during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job will not be included in the calculation for time spent unemployed.
• Each day spent outside of the United States while a student does not have employment will count toward the 90 days aggregate (120 if you are STEM).

Special thanks to NAFSA. Information was gathered from their website www.nafsa.org