OPT EXTENSION AND CAP GAP INFORMATION

On April 4, 2008, the Department of Homeland Security (DHS) announced an interim final rule which will provide for extension of Optional Practical Training (OPT) for certain qualified F-1 students, as well as "cap gap" relief for F-1 students with a pending H-1 petition who would otherwise have to leave the United States between the end of their authorized OPT and the beginning of their H-1 authorization period.  On April 8, 2008, the interim final rule was published in the Federal Register, thus making the new regulations effective as of April 8.

This page will be expanded and updated regularly as more information regarding changes in OPT regulations and the related procedures becomes available.  We will also be publicizing updates via our ISS-L listserv and "Immigration Updates" Facebook group.  In the meantime, below is a summary of the effect of the interim final rule which has been announced by DHS.

WHAT BENEFITS ARE INCLUDED IN THIS RULE?  This interim final rule provides two types of benefit to F-1 students pursuing OPT:

 1.      One-time extension of up to 17 months for certain qualified students in Science, Technology, Engineering, or Mathematics (STEM) fields;

2.      "Cap Gap" relief for F-1 students with a pending H-1B application whose OPT and/or grace period would expire before the H-1 period begins.

WHO CAN RECEIVE THE 17-MONTH EXTENSION?

The 17 month extension will only be available to students who meet the following requirements:

·         They are ALREADY in a period of approved post-completion OPT;

·         They have received (completed) a degree at bachelor, master, or doctorate level in one of the fields designated by Homeland Security as a “STEM” degree;

·         They are employed by an employer who is registered and in good standing with the USCIS (Citizenship & Immigration Service) “E-Verify” program;

·         They agree to report the following information to their DSO (foreign student advisor): Changes to their name, residential address, mailing address, employer, employer’s address; also, they agree to report and verify information with the DSO every six months during the extension even if there have been no changes;

·         Their employer agrees to report to the student’s DSO within 48 hours if the student leaves employment before the end date of the OPT authorization

WHAT DEGREES QUALIFY FOR THE EXTENSION?

The degrees currently included in the list of qualifying “STEM” degrees for the extension are:

·         Actuarial Science

·         Computer Science (except Data Entry/Microcomputer Applications)

·         Engineering

·         Engineering Technologies

·         Biological and Biomedical Sciences

·         Mathematics and Statistics

·         Military Technologies

·         Physical Sciences

·         Science Technologies

·         Medical Scientist (MS, PhD)

The approved list is designated by code in the “Classification of Instructional Programs” (CIP) listing published by the U.S. Department of Education.  We will be developing a list of degrees available at the University of Arkansas with CIP codes which correspond to the designated list, and will post that information here as soon as it is compiled.

WHAT IS THE “CAP GAP”?

Students who have been approved for H-1 employment, but whose OPT and/or grace period expire before the October 1 fiscal year for H-1 authorization begins, face a “gap” in authorization.  Often, this means that the student must leave the United States for a period of time and return to begin employment under H-1 status.  This interim final rule will implement relief for students in this type of situation by extending their status and employment authorization if they have a pending H-1B petition.   

WHO QUALIFIES FOR CAP GAP RELIEF?

Unlike the 17-month extension, cap gap extension of status and employment authorization applies to any F-1 student with an approved or pending H-1B petition during a fiscal year.  This allows the student transitioning from OPT to H-1 to remain in the U.S. and continue employment during the “gap” period. 

To be eligible for this cap gap extension benefit, the student must have an H-1B petition that was timely filed, and which states that the H-1 employment start date is October 1 of the following fiscal year. 

The cap gap extension and employment authorization will end immediately if the H-1B petition is rejected, denied, or revoked; however, the student will be allowed the standard sixty days to depart the United States, beginning as of the date the notice of denial/rejection is issued by USCIS.

ARE THERE OTHER IMPORTANT CHANGES TO OPT REGULATIONS?

Yes.  They include:

·         Limit on period of unemployment:  Since the purpose of OPT is to provide practical work experience in the field of study, DHS has determined that there must be limits on how long a student may remain unemployed and still maintain valid F-1 status.

o   For 12-month “regular” OPT, the aggregate maximum period of unemployment is 90 days.

o   For students with an approved 17-month extension, the aggregate maximum period of unemployment is 120 days.

·         Deadline to submit OPT application:  This rule will change the current requirement that the OPT application must be received by USCIS prior to completion of the student’s academic program.  Under the new rule, the OPT application may be received during the 60-day period following completion of the program.  It may not be filed earlier than 90 days prior to completion of the program.

·         When OPT may begin: This rule will allow students to request a start date for OPT that is no later than 60 days following completion of the academic program, and the 12-month “regular” OPT period must be completed within 14 months of completion of the academic program.  Employment may NOT begin prior to the date issued on the student’s Employment Authorization Document (EAD card).

·         Sixty day period to follow OPT: This rule allows for “duration of status” to include a sixty day period at the end of the authorized OPT to allow for preparation to depart the United States, transfer to another school or academic program, etc.

·         Reporting requirements for students in OPT: All students authorized to engage in OPT are required to notify their DSO (foreign student advisor) if their name or address changes, or if their employment is interrupted, for the duration of the OPT.  Additionally, students with a 17-month extension based on a STEM degree must report to the DSO changes of legal name, residential or mailing address, employer name, employer address, and/or loss of employment.  Failure to comply with these reporting requirements within the deadlines established by DHS is a violation of status.

We will post additional information as it becomes available and as DHS updates forms, etc. which are necessary for the extension process and other processes.  If you would like to read the interim final rule, you may find it at:

 http://www.nafsa.org/_/Document/_/opt_29_month_rule.pdf

 You may also read the DHS press release at:

 http://www.dhs.gov/xnews/releases/pr_1207334008610.shtm

 Please stay tuned.