New Optional Practical Training (OPT) Rules for F-1 Students

On April 3, 2008, The Department of Homeland Security announced the publication of an Interim Final Rule. The rule, which took effect on April 8, 2008, makes significant changes to Post-Completion Optional Practical Training for F-1 students.

Highlights of the New Rule:

1. The current 12-month limit on OPT will be extended by 17 months, for a total of 29 months for certain STEM degree holders ONLY
2. The H-1B "Cap Gap" is eliminated by extending OPT employment and status for those who are beneficiaries of an H-1B petition with an October 1 start date (available to ALL OPT participants)
3. The filing deadline for initial OPT applications is changed (applies to all OPT participants)
4. There are new reporting requirements for students and employers (applies to all OPT participants)
5. Post-Completion OPT will now be dependent on employment. Only limited periods of unemployment will be permitted (applies to all OPT participants)

1. What is STEM?

S = Science
T = Technology
E = Engineering
M = Mathematics

STEM Fields include


• Actuarial Science
• Computer Science Applications
• Engineering
• Engineering Technologies
• Biological and Biomedical Sciences
• Mathematics and Statistics
• Military Technologies
• Physical Sciences
• Science Technologies
• Medical Scientist (MS, PhD)



The student must also agree to provide a report every six months to the International Student Office of his former school to verify the above information

What Is E-Verify?

E-Verify was formerly known as the Basic Pilot/Employment Eligibility Verification Program. E-Verify is an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration.

E-Verify allows participating employers to electronically verify the employment eligibility of their newly hired employees. E-Verify is free and voluntary. However, there are concerns whether employers will want to join E-Verify. Currently, less than one percent of all US employers are enrolled in E-Verify. If an 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 for employment when that is not accurate. Participating employers must permit visits by Homeland Security and the Social Security Administration to review their employment records and interview employees.

Remember that a F-1 student seeking to extend his or her OPT by 17 months can only do so if at the time of filing, the student is employed by, or has a job offer with, an E-Verify participating employer.

There is not enough information known at this writing to determine if the E-Verify requirement will have a negative impact on employer participation, and thus prevent many students on OPT in STEM fields from seeking the 17-month extension.

For more information visit E-Verify

2. New Filing Deadlines for Initial OPT Applications

Currently, an applicant for post-completion OPT must file their application before their degree completion date. Under the new rule, a student will be able to file the OPT application up to 90 days before the degree completion date, and up to 60 days after the degree completion date. However, the application for OPT must be submitted to the USCIS Processing Center within 30 days of the date the school enters the recommendation for OPT into the SEVIS record.

Duration of OPT

The starting date for the OPT Employment Authorization Document (EAD) will be the date requested by the student or the date OPT is approved at the USCIS Service Center, whichever is later. But, there is an exception: the authorization period for the 17-month OPT extension begins the day after the expiration of the initial post-completion OPT employment authorization, and ends 17 months later, regardless of the date the extension is approved.

3. Reporting Requirements for Students and Employers While on OPT

All students on OPT must report to the international student office at their former school:

The H-1B "cap-gap" occurs when a F-1 student's status and OPT work authorization expires during the current fiscal year before the student can start approved H-1B employment during the next fiscal year that begins on October 1. For example, a student whose OPT ending date is July 16, 2008, and whose employer successfully files an H-1B petition for a job that is subject to the H-1B "cap" and starts October 1 currently needs to stop employment as of July 16, and depart the United States on September 15 (the last day of the 60-day grace period following OPT). While outside the United States, the student must then obtain an H-1B visa, and cannot re-enter the United States any sooner than 10 days prior to the H-1B start date.

Under the new rule, a student currently on OPT who is the beneficiary of a timely-filed H-1B petition that requests an employment start date of October 1 of the following fiscal year will have his or her duration of status and OPT employment authorization extended to that date.

Should the pending H-1B petition ultimately be denied, the student will have a sixty day grace period from the notification date of the denial to depart the United States, obtain admission to a new F-1 SEVIS-approved school, or file an application for a change of status.

• Change of name
• Change of residential or mailing address
• Name and address of employer
• Change in the name or address of employer
• When employment changes or terminates



4. Elimination of the H-1B "Cap-Gap"

• Any change in name or address
• The name and address of their employer
• Any change to the name and address of the employer
• Any interruption of such employment



In addition, students with an approved 17 month extension must report to the international student office at their former school within ten days:

• Any change in name or residential/mailing address
• The name and address of their employer
• Any change to the name and address of the employer
• Any interruption of such employment



Students with an approved 17 month extension must also make a validation report to the international student office at their former school every six months starting on the date the extension begins and ending when the OPT ends. 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 employer of a student with an approved 17-month OPT extension must agree to report the termination or departure of the student to the International Student Office of the student's former school or through "any other means or process identified by the Department of Homeland Security."

5. Post-Completion OPT is Now Dependent on Employment

Students on post-completion OPT may not accrue an aggregate of more than 90 days of unemployment under the initial 12-month period of OPT. Students granted a 17-month OPT extension may not accrue an aggregate of more then 120 days of unemployment during the total 29-month OPT period

Web Resources

There are some excellent web resources available on the new OPT rule:

Department of Homeland Security Announcement

US Citizenship and Immigration Services Q and A

NAFSA
Association of International Educators Resource on the Interim Final Rule

Text of Interim Final Rule
Text format (27 pages)
PDF file (13 pages)

Acknowledgement: To NAFSA: Association of International Educators and International Student and Scholar Services at Binghamton University.