Potential Extension of F-1 OPT Validity Period
Posted Apr 04, 2008
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The U.S. Immigration and Customs Enforcement (ICE) submitted an interim final rule to the Office of Management and Budget (OMB) on March 31, 2008 that would extend the period of Optional Practical Training (OPT) for eligible students in F-1 status by 17 months. Because the regulation remains at the OMB, a copy is not yet available publicly. It is somewhat unclear if the regulation would extend the total possible time on OPT to 17 months or if it would provide for an additional 17 months beyond the currently authorized 12 months, for a total of 29 months. It appears that the F-1 OPT will be valid for a total of 29 months. However, one must plan to file for the F-1 OPT before graduation, under existing procedures, until the regulation is published or until ICE issues a public notice, if one is to avoid losing out on the OPT altogether. It is unwise at this stage to wait for any potential changes.
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U.S. Senators Previously Requested F-1 OPT for 29 Months
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It seems more likely that the maximum period of authorization would total 29 months. This is in accord with a letter sent by 19 U.S. senators to U.S. Department of Homeland Security (DHS) Secretary Michael Chertoff on November 8, 2007. This development was reported in our November 16, 2007 MurthyBulletin article, Senators Request Longer OPT Time for Students, available on MurthyDotCom.
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Review Process by OMB and Date for Interim Final Rule
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The general time for OMB review is ninety days. Thus, it is expected that the OMB will complete this review by the end of June 2008. If the OMB does not find any significant issues with the regulation, it will be published in the Federal Register. Since it is an interim final rule, the USCIS may place an effective date in the notice, and the rule will be in effect from that date. Should the OMB still have comments or questions on the rule, it may need to be returned to the DHS and/or ICE for further revisions.
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What Should F-1 Students Do Now?
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It is impossible to predict whether the OMB will approve the rule for publication, or exactly when that might happen. Individuals who need to apply for F-1 OPT, therefore, should do so in a timely fashion before graduating to avoid losing eligibility for OPT. The law requires the OPT application to be filed before the F-1 student graduates. Clearly, many U.S. employers and their foreign national employees authorized for OPT would welcome an extended validity period. Most importantly, this benefit would provide the much needed relief for those who need additional time on OPT before they are able to start work in H1B status, known as the "cap gap." We at the Murthy Law Firm will continue to monitor this important new development, to update our readers once the OMB's review is complete.