On April 8, 2008, the Department of Homeland Security (DHS) published an interim final regulation, effective immediately that changes some of the regulations pertaining to Optional Practical Training (OPT) for F-1 students. While the provisions of this new rule are now in effect, many details regarding the implementation of the rule need to be worked out.  Some changes cannot actually be implemented until the SEVIS system is upgraded and/or interim instructions and procedures are developed by DHS and the US Citizenship and Immigration Services (USCIS). 

The following description is very long, but it is important that you review all of the changes. Some changes affect ALL F-1 students and some changes affect only students whose degrees are in Science, Technology, Engineering and Math.

Highlights of the new rule include:

               1. Change in OPT application filing period

               2. "Cap Gap" employment authorization

               3. 17 month OPT extension for STEM students

               4. Period of unemployment while on OPT

               5. Address reporting requirements

               6. Employer/employment reporting requirement

1. Change in OPT application filing period

Under this new rule, F-1 students may file for OPT up to 90 days prior to completion and up to 60 days after completion of program/degree requirements. This change now allows F-1 students to apply for OPT after they have completed their program instead of requiring students to apply for OPT before completion (under the prior rule). However, an OPT start date may not be more than 60 days after the program end date. The rule also requires that US Citizenship and Immigration Services (USCIS) receive the application within 30 days of the date OVS recommends the OPT in SEVIS.

2. “Cap-Gap” employment authorization

A "gap" in immigration status may occur when someone's current status expires before a new status becomes affective. "Cap-gap" is a term that is used in conjunction with H1B petitions and is caused by the limit of the number of Hs that can be approved in a year. A “cap-gap” occurs when someone’s OPT employment authorization and F-1 status expires before an H-1B with a starting date of October 1 becomes available. 

For ALL students who have authorized OPT and have filed a timely request for a change of status (not consular notification) to H1B with an employment start date of October 1, the new rule automatically extends OPT work authorization and duration of status until October 1 as long as the application is pending or has been approved. The OPT authorization is automatically ended if the H-1B petition is rejected, denied or revoked. 

If your H1B petition was filed as consular notification, your employer may request that it be changed to an application for change of status. You should consult your employer or immigration attorney about this.

This provision applies to all students on OPT regardless of their field of study and effectively provides employment authorization and permission to remain in the US during the “cap-gap” that has typically occurred in the past between the end of a student’s OPT period and the beginning of H-1B status on October 1. This provision applies to both students currently on OPT as well as students who have recently applied for OPT or who will apply for OPT in the future.

The Government is working to update SEVIS with the ability to print a new I-20 form to cover the "cap-gap" extension. This functionality does not currently exists, so we can not provide you with documentation of your extension or employment authorization at this time. Until SEVIS is updated with this functionality, we are not able to issue new I-20s for you. Therefore, you should not plan to travel outside the U.S.  during the "cap-gap"

3. 17 month OPT extension for SOME students with degrees in Science, Technology,
    Engineering or Math (STEM)

The new rule allows students who:

• received a bachelor’s, master’s or doctoral degree in a STEM (Science, Technology, Engineering or Math) field AND

• who work for an employer who participates in E-verify (currently only about 1% of U.S. employers
  do) to apply for a 17 month extension of their OPT. 

There are several other important provisions that must also be met.

STEM

DHS has determined which “majors” qualify as “STEM” majors.  The determining factor is the CIP code (a US government coding system) used in creating your I-20; not the name of the major that appears on your
I-20. The fields may change over time. Our initial reading is that the STEM fields include the following Princeton majors:

 Actuarial Science: none

Engineering:  Civil & Environmental Engineering, Chemical Engineering, Computer Science, Electrical Engineering, Mechanical & Aerospace Engineering, Operations Research & Financial Engineering

Engineering Technologies: none

Biological and Biomedical Sciences:  Ecology & Evolutionary Biology, Molecular Biology

Mathematics and Statistics:  Applied & Computational Math,  Mathematics

Military Technologies: none

Physical Sciences:  Astrophysics, Atmospheric & Oceanic Sciences, Chemistry, Geosciences, Physics, Plasma Physics

Science Technologies: none

Medical Scientist: none

The student must have completed a bachelor’s, master’s or Ph.D. in a STEM field and be  working or have a job offer for a job directly related to the most recent major field of study which must be a STEM field.

Only one 17 month extension is possible regardless of how many degrees in the US that the student obtains.

E-Verify

STEM students must also have a job or job offer and the employer must be a participant in the US government’s “e-Verify” system,   “E-verify” is an electronic employment eligibility verification system under which employers commit to use an electronic database to check whether the name and social security number presented by new hires match the records in the Social Security database and whether any immigration documents presented by the employee match information in DHS’s database.  Currently only a small percentage (estimated at 1%) of employers in the US participate in this program. 

NOTE:  e-verify requires a significant investment in training of human resources staff and may expose an employer to increased risk of discrimination charges and to government audits if not implemented correctly.  Therefore, employers may be resistant to participating in the e-Verify program.  If the employer joins, the employer will have to verify ALL new employees, including US citizens, in e-verify.  There have been reports of significant discrepancies in the databases currently being used that result in verification errors indicating that a worker is ineligible to work when that is not the case.  Participating employers must permit visits by DHS and the Social Security Administration to review their employment records and interview employees. 

If an employer is not enrolled in e-verify, a STEM student cannot obtain the 17 month OPT extension.

Employer reporting requirement

The employer must agree to report to OVS within 48 hours when the job ends or the student leaves the employer.

Student reporting requirements

The student must report to OVS within 10 days any changes in:

• their name

• residential and mailing addresses

• employer’s name

• employer’s address

• employment status (loss of employment)

OVS is required to report this information to DHS via SEVIS within 21 days. 

The student must also confirm the above information every 6 months from the start date of the 17 month extension until the end of the 17 month period of OPT. The report must be submitted within 10 business days of each 6 month reporting date.

Process

Students cannot request all 29 months (12 plus 17) in the initial OPT application. Students will apply for an initial 12 month period of OPT then they obtain a second OPT recommendation from an OVS advisor for the 17 month extension and submit a 2nd application (with required fee) to USCIS requesting the extension in a timely fashion (DHS recommends at least 90 days prior to the end of the initial 12 month period of OPT). If the application has been timely filed, the student may continue working while the application is pending, even if the extension is not approved prior to the end of the initial 12 month period of OPT.

 4. Periods of unemployment while on OPT 

The new rule requires that students authorized for OPT be employed to maintain F-1 status. Students authorized for 12 months of OPT may not be unemployed for more than 90 days, STEM students working for e-verify employers who receive 29 months of OPT, may not be unemployed for more than 120 days. 

So, while a job offer is not required to apply for the initial 12 month period of OPT, maintaining status during OPT requires that a student be employed for at least 9 of 12 months and at least 25 of 29 months if s/he received the STEM OPT extension. It is not yet clear what will happen if a student fails to maintain status. There is no current requirement that your SEVIS record be terminated. However, students may be denied future immigration benefits that rely on valid F-1 status if the allowed period of unemployment is exceeded.

5. Reporting requirements for ALL students 

During the initial 12 months of OPT:

The regulations require ALL students on the initial 12 month period of OPT to report any change of their name or address and to report any “interruption of…employment.” There is no clear requirement for the student to report a change of employer’s name or address. However, supplementary language to the new regulation implies that students are expected to report the name and address of their employer to OVS while they are on OPT and, most specifically, to notify OVS if the employment ends.

During the 17 month STEM OPT extension: 

The new regulation clearly requires these students to notify OVS of any changes in name or address, the employer’s name or address AND to provide verifications every six months about this information. Students will need to email OVS with such changes and OVS will need to develop a system for students to provide the six month verifications.  

6. In conclusion

While the entire rule is effective immediately, actual implementation may be delayed for some aspects of the rule until USCIS and SEVP procedures and implementation instructions are published. Additionally, the SEVIS system will need several upgrades to implement all of the provisions of the rule.

As more information and clarification becomes available, we will update this published information.