F-1 OPT Interim Final Rule of April 8, 2008 - Summary and Analysis
Posted Apr 09, 2008; updated Apr 22, 2008
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The Murthy Law Firm has received from the USCIS a response to a question that was previously unanswered.
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As regular visitors to MurthyDotCom readers know from the posting "Cap Gap Relief" on our main page, the U.S. Department of Homeland Security (DHS) recently issued a regulation entitled Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. This regulation was published in the Federal Register and became effective on April 8, 2008. This is an interim final rule that is open for public comments until June 8, 2009. As this rule considerably changes current procedures and eligibility criteria for Optional Practical Training (OPT), which is of considerable importance to a large number of students in F-1 status as well as many U.S. employers, we provide a summary and analysis, as well as raising unanswered questions in this MurthyDotCom article. We hope to obtain clarification from the USCIS on the many gray areas but, fortunately, this rule provides for much needed relief for the benefit of U.S. employers and for F-1 students who have invested heavily in their U.S. education.
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Automatic H1B Cap-Gap Extension under Certain Conditions
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The April 8, 2008 rule provides for the automatic extension of status and work authorization for F-1 students, if three conditions are met.
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The first condition is that the employer timely filed an H1B case (i.e. while the prospective employee is still in F-1 status pursuant to the grant of OPT) with a request for Change of Status. (It should be noted that the regulation does not provide for any cap gap relief to those whose employers filed H1B petitions requesting consular processing as opposed to change of status. Since the rule was published after the deadline to receive H1B petitions for this coming 2009 fiscal year, it penalizes those who decided to depart the U.S. instead of those who attempted to file a change of status.) The other two requirements are that the H1B petition indicates an October 1st start date for employment and that the student otherwise must not have violated his or her status.
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If all three of the above conditions are met, status and work authorization shall automatically continue until October 1st or until the H1B cap case is rejected (including not being selected in the random lottery), denied or revoked, whichever is earlier. The cap gap provision automatically extends the F-2 status of F-1 family members.
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Basic OPT Rules Remained Unchanged
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The new rule has not changed the basic requirements for OPT that apply to all F-1 students. According to these rules, an F-1 student can apply for OPT to engage in practical training directly related to the student's major area of study. The student cannot start employment until an Employment Authorization Document (EAD) is issued by the USCIS.
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Pre-Completion OPT
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OPT can be granted either pre-completion or post-completion of the education. The pre-completion OPT rules remain unchanged, permitting OPT during annual vacation or other times when school is not in session, as long as the student remains enrolled and intends to continue with classes the next time classes begin. The student may also qualify for OPT while school is in session if OPT does not exceed 20 hours per week.
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Post-Completion OPT
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The basic rules for post completion OPT are also unchanged, as is permitted after completion of the course of study, the student must complete OPT within the 14-month period following completion of the course of study. The rule now permits an additional 17 months of extension of post-completion OPT for certain students, as explained below.
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Extension of Post-Completion OPT by 17 Months for STEM Students
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The rule provides for the 17-month extension following the 12-month post-completion OPT for students who "have completed a science, technology, engineering, or mathematics (STEM) degree" and if all of the following conditions are met:
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- The student has not previously received a 17-month OPT extension after earning a STEM degree.
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- The student's current OPT is based on a STEM Designated Degree.
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- The employer is registered in the eVerify program.
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- The employer agrees to report the termination of OPT employment to the Designated School Official (DSO), whose name appears on Form I-20, within 48 hours of termination if the termination takes place before the end of the authorized period of OPT. Termination occurs when the employer knows the student employee has left the employment, or if the student does not report for work for five (5) consecutive business days, whichever is earlier.
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- The student must report to the DSO within ten (10) days of any changes in name, employment, personal or mailing address, termination or change of employer, and must check in with the DSO every six (6) months from the date the extension begins to verify that all the information the school has on file remains correct.
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Maintaining F-1 Status While on OPT
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In order to be regarded as maintaining status while on OPT, the student cannot have more than a total of 90 days of unemployment during the initial 12 months of post-completion OPT. In addition, the student cannot have more than a total of 120 days of unemployment during post-completion OPT during the extended OPT period, now totaling 29 months.
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New Filing Deadlines and Timing
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The regulation establishes important new deadlines for applying for pre-completion, post-completion, and 17-month OPT extension.
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Pre-completion OPT can be requested up to 90 days before having completed one full academic year, provided the proposed start date will not commence before completion of one full academic year.
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Post-completion OPT requests can be made up to 90 days before the program end date. The student must apply for OPT no later than 60 days after the program end date and within 30 days from the date DSO enters recommendation for OPT into SEVIS. Work authorization starts on the day the OPT is approved and ends upon the expiration of the OPT.
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The new 17-month OPT extension contains a requirement that the student must apply for OPT extension before expiration of post-completion OPT. If the extension request is timely filed, the student can continue to have work authorization automatically for 180 days past expiration of the previous EAD card while the extension application is pending. Thus, for a timely-filed request, work authorization for 17-month OPT extension starts the day after post-completion OPT expires and continues for 17 months thereafter, regardless of the date of the approval of the EAD.
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Unanswered Questions
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While the new OPT regulation benefits many F-1 students who would like to stay and work in the U.S., there are some unanswered questions that the regulation does not appear to address. We at the Murthy Law Firm pose these questions below, followed by our interpretation of the rules. We would note that these interpretations are based upon our initial reading, analysis, and possible favorable arguments. The USCIS could take a more restrictive reading on some of these issues.
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F-1 Consular Notification versus Change in Status
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Question  How are current F-1 students treated if their H-1 cap cases were filed for consular processing instead of change of status, because at the time of filing their OPT the OPT did not extend until October 1, 2008 and the interim rule was not published until after the deadline to receive H1B cap subject cases?
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Answer  The Murthy Law Firm submitted this question to the USCIS and received this response:

The USCIS announced on April 18, 2008 that it now will give these candidates the opportunity to request that their petitions be amended to request a change of status in lieu of consular processing. Petitioning employers, or their authorized representatives (not the foreign national beneficiaries), must contact the service center using the special eMail addresses listed below in order to make this request within 30 days of the issuance of a receipt notice for the cap case. The request should be made as soon as possible after the case is receipted so that it can be processed before the adjudication of the H1B petition. The request should include the receipt number, the petitioner's name, the beneficiary's full name, date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number. The request cannot be made until the case has been receipted.

The special eMail addresses for requesting the change of status are as follows:

Vermont Service Center
- Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
- Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov

California Service Center
- Premium Processing cases: CSC.ppcapgap@dhs.gov
- Non-Premium cases: CSC.nonppcapgap@dhs.gov
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Additional Information for Eligibility as a STEM Degree
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Question  How do I determine that my degree is a STEM Designated Degree?
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Answer  There is guidance in the interim rule that an approved list will be available at http://www.ice.gov/sevis, although it does not appear the list has been posted as of this writing. Furthermore, at the time of requesting the 17-month OPT extension the DSO will have to certify that the degree is, in fact, a STEM Designated Degree. The USCIS has also indicated that it will be adding fields to Form I-765 in order to request confirmation that the underlying degree allows the student to be eligible for the 17-month extension, as well as a field to verify the employer's eVerify information.
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The regulation lists the following fields as being within the STEM designation. The reference numbers are a system of Classification of Instructional Programs (CIP) designated by the National Center for Educational Statistics (NCES).
 

F-1 Students 2007 Graduates Filing for H1B Change of Status
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Question  I am a beneficiary of an H1B petition filed for Change of Status and I am now in my 60-day grace period following the end of my OPT employment authorization. May I benefit from an automatic extension? If yes, would I be able to continue employment or will it just extend my grace period until the October 1 employment start date?
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Answer  This is not specifically addressed in the regulation. However, the regulation specifies that the H1B request for change of status has to be "timely filed," which is defined as filing before one's current nonimmigrant status expires. In addition, the duration of status while on OPT is defined as including the 60-day grace period. Furthermore, the new rule also states that "any employment authorization" is extended if an H1B petition is timely filed. Based on the plain language of the rule, one could argue that, if an H1B petition with change of status is timely filed before one's current F-1 status expires, then s/he may be able to take advantage of both the automatic extension of status and the automatic extension of employment authorization. It should be noted that this is an aggressive approach that is not specifically addressed in the new regulations.
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Automatic Extension Possible Even if H1B Petition Denied
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Question  When a STEM student benefits from automatic extension in the above scenario, but the petition is denied, will s/he be able to use the provision allowing for the 17-month extension, provided all other eligibility criteria are met?
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Answer  Arguably, yes. The 17-month OPT extension rule states that it must be filed "prior to the expiration date of the student's current OPT authorization." A student may have "current OPT authorization" based on the automatic cap-gap extension, which could also be considered a "valid period of post-completion OPT" as it is an automatic extension of the student's previous period of post-completion OPT.
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Pre-Completion Use of OPT
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Question  Are students who used one (1) year of pre-completion OPT authorized for the 17-month extension following graduation?
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Answer  No, probably not, as under the regulation, the extension not only has to be filed "prior to the expiration date of the student's current OPT authorization," but also states that s/he has to "apply for an extension of OPT while in a valid period of post-completion OPT."
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However, since it requires an applicant to apply for an extension while in a period of post-completion OPT, then the student arguably could use part of the 12 months OPT authorization pre-completion, and apply for the 17-month extension following the period left over for post-completion OPT.
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Conclusion
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The final interim rule provides tremendous relief to many F-1 students and U.S. employers caused both by the cap gap and the lack of sufficient H1B numbers. As with any new rule, regulation, or law, there are many unanswered questions that we hope to clarify with the USCIS. We at the Murthy Law Firm will continue to share any updated knowledge or information with our readers.