On April 4, 2008, the Department of Homeland Security (DHS) released an
interim final rule which makes two major changes to the Optional Practical
Training (OPT) program for foreign students in F-1 status. The rule extends the
period of time a foreign student can work after completing his or her degree
program in the following two situations:
- Students who are the beneficiaries of a petition seeking a change to
H-1B status on October 1, the start of the new federal fiscal year, receive
an automatic extension of their status and work authorization until that
date or, if applicable, until the petition is denied, rejected or revoked.
- Students who have degrees in certain science, technology, engineering
and mathematical fields may apply for a 17-month extension of their work
authorization if their employers participate in E-Verify, DHS’s electronic
employment verification system.
The first of these changes addresses what is commonly referred to as the “cap
gap” situation: The number of H-1Bs for any federal fiscal year is capped and
employers are permitted to petition for one of the visas available under the cap
no sooner than April 1, six months in advance of the fiscal year. As a result,
many students’ F-1 status and work authorization expire in the current fiscal
year before the students can start H-1B employment in the new fiscal year.
Students in this cap-gap situation are often forced to leave the United States
and return at the time their H-1B status becomes effective at the start of the
new fiscal year. The new rule permits students to stay and work in the U.S. if
their employer has requested a change of the student’s status effective October
The second change, according to DHS Secretary Chertoff, “will enable
businesses to attract and retain highly skilled foreign workers, giving U.S.
companies a competitive advantage in the world economy.” To be eligible for this
17-month work extension, an F-1 student must apply at least 90 days before his
or her current post-completion OPT expires and must:
- Currently be participating in a 12-month period of OPT following
completion of a U.S. degree.
- Have successfully completed a degree with a degree code on the STEM
(Science, Technology, Engineering or Math) Designated Degree Program List
which includes the following: Actuarial Science, Computer Science,
Engineering, Engineering Technologies, Biological and Biomedical Sciences,
Mathematics and Statistics, Military Technologies, Physical Sciences,
Science Technologies, and Medical Scientist.
- Work for a U.S. employer in a job directly related to the student’s
major area of study.
- Be working for, or accepted employment with, an employer enrolled in
E-Verify, a Web-based system that allows employers to verify employment
eligibility of new hires by comparing information taken from the I-9 form
against a government database.
Eligible students should ask the Designated School Official at their college
or university to recommend the extension by endorsing a Form I-20 and making the
appropriate notation in SEVIS, the system used to track foreign students.
Students then file a Form I-765 employment authorization application with DHS,
supported by the endorsed I-20 and a copy of the STEM degree. If approved, they
will receive a new employment authorization document.
The new rule also makes the following changes: Students are now permitted to
apply for post-completion OPT up to 90 days before their academic program ends
and for 60 days afterwards, instead of the former rule that did not permit
post-completion application. Also, there is for the first time a limitation of
unemployment while in OPT. Students in 12-month OPT may only be unemployed for
an aggregate of 90 days before losing status. With a 17-month extension, the
permitted unemployment period increases by 30 days.