Frequently Asked Questions: Interim Rule OPT

Post-completion Optional Practical Training (OPT) for F-1 Students.

updated April 15, 2008

1. What are the highlights of this new interim rule?
2. When is this ruling effective?
3. What is the "Cap Gap" and who is eligible for the automatic extension that eliminates it?
4. What is STEM and why is it important?
5. Aside from a degree in a STEM field, are there the other conditions that must be met in order to qualify for the 17-month extension?
6. How does an eligible F-1 student apply for the 17-month extension?
7. Will I have to stop working if my application for the 17-month extension is not approved before my standard OPT expires?
8. What is E-Verify and what are the responsibilities of my employer if I am authorized this 17-month extension?
9. What are the student's responsibilities if authorized OPT?
10. How does this ruling affect the OPT application process for F-1 students who have not yet completed their degree requirements?
11. Can unemployment become a problem for me?
12. What are some of the outstanding issues?
13. Where can I find additional information related to this new ruling?
    

 

1. What are the highlights of this new interim rule?

This new interim rule:

• Eliminates the "Cap Gap" by extending the F-1 student's "duration of status" and the end of the standard OPT period until the date on which the student's H-1B status becomes effective;
• Extends post-completion OPT an additional 17 months (for a total of 29 months) for F-1 students in certain fields of study (STEM) ;
• Extends the period during which the F-1 student may apply for the original 12 months of OPT;
• Places additional responsibilities on the F-1 student who remains in the U.S. for post-completion OPT, on the student's employers and on the student's school, as well as the student;
• Limits the total number of days of unemployment to 90.
  

2. When is this ruling effective?

This interim rule became effective April 8, 2008. The public has until June 9, 2008 to comment on it before it becomes law. Student Exchange Visitors Program (SEVP) officials are reviewing this interim rule with major institutions, such as NAFSA: Association of International Educators. New practice guidelines are released regularly as issues are discussed.

3. What is the "Cap Gap" and who is eligible for the automatic extension that eliminates it?

Before this interim ruling, an interruption of employment occurred whenever post-completion OPT expired weeks, often months, before the approved H-1B change of status became effective. This interruption is known as the "Cap Gap."

The new ruling automatically extends the F-1 student's "duration of status" and the end of the regular OPT period until the date on which the student's H-1B status becomes effective thus, eliminating the "Cap Gap." This provision applies to any F-1 student in any field of study who:

• has been maintaining status;
• is the beneficiary of an H-1B petition filed before the expiration of F-1 status;
• has not had an H-1B petition rejected, denied or revoked.

4. What is STEM and why is it important?

"STEM" stands for:

Science
Technology
Engineering
Mathematics

As stated earlier, the new ruling allows F-1 students in STEM fields of study to apply for an additional 17 months of post-completion OPT, giving them a total of 29 months of OPT. The additional 17 months offers the student at least two opportunities to attain H-1B status.

The Federal Register has noted that "the student's degree, as shown in SEVIS, must be a bachelor's, master's, or doctorate degree with a degree code that is on the current STEM Designated Degree Program List"; The current STEM list includes:

• Actuarial Science. CIP Code 52.1304
• Computer Science Applications: CIP Codes 11.xxxx ( except Data Entry/Microcomputer Applications, which are CIP Codes 11.06xx)
• Engineering. CIP Codes 14.xxxx
• Engineering Technologies. CIP Codes 15.xxxx
• Biological and Biomedical Sciences. CIP Codes 26.xxxx
• Mathematics and Statistics. CIP Codes 27.xxxx
• Military Technologies. CIP Codes 29.xxxx
• Physical Sciences. CIP Codes 40.xxxx
• Science Technologies. CIP Codes 41.xxxx
• Medical Scientist (MS, PhD). CIP Code 51.1401

The interim ruling excludes from the STEM list all CIP codes ending in "99," which Department of Homeland Security (DHS) considers a "catch-all" designation and not a distinct, unique field of study. Students with degrees in such majors are not eligible for the 17-month extension.

View the comprehensive CIP code list

It should be noted that the STEM list was generated by the Department of Homeland Security. It chose fields in which the U.S. has found "a shortage of qualified, highly-skilled U.S. workers." DHS has invited the public to comment on the list and to recommend additional fields for consideration.

5. Aside from a degree in a STEM field, are there other conditions that must be met in order to qualify for the 17-month extension?

To be eligible for the 17-month extension, an F-1 student must:

• be maintaining F-1 status;
• have completed a bachelor, master's or doctoral degree in a STEM program at a school certified by SEVIS;
• apply for the 17-month extension during the standard 12-month post-completion Optional Practical Training period;
• not have received a previous 17-month extension after completing a STEM degree program;
• have a job directly related to his/her field of study;
• work for or have accepted a job offer from an employer enrolled in the U.S. Citizenship and Immigration Service (USCIS) E-Verify program.
  
  

6. How does an eligible F-1 student apply for the 17-month extension?

The student must work with his/her former international student office, the one that recommended the current OPT. The application requires:

• verification of the student's eligibility (i.e., a job offer letter with the specific field noted, a description of the job, dates of employment, etc.);
• a recommendation from the student's international student advisor in the form of a new I-20;
• a completed I-765 (a new version was released on April 9, 2008; the employer's E-Verify information must be entered on form);
• I-765 filing fee (currently $340).
  

The student must apply for the 17-month extension before the standard 12-month post-completion OPT period expires. The application should be sent to the USCIS center serving the region in which the student resides.

7. Will I have to stop working if my application for the 17-month extension is not approved before my standard OPT expires?

A students who files an application for the 17-month OPT extension in a timely fashion may continue to work while the application is pending. He/she may work up to 180 days or until the application has been adjudicated, whichever occurs first.

8. What is E-Verify and what are the responsibilities of my employer if I am authorized this 17-month extension?

E-Verify is an electronic database containing names, photos, social security numbers and immigration documents. Managed by the Department of Homeland Security and the Social Security Administration, the program allows employers to verify, via the internet, the employment eligibility of new hires.
The U.S. Government does not require employers to participate in the E-Verify program at this time. It is voluntary at the federal level. Deciding whether or not to participate in E-Verify will be complicated for employers as they weigh the program's advantages and disadvantages.

However, if an employer wants to support an F-1 students application for a 17-month extension, the employer must participate in the E-Verify program. In addition, the employer must agree to notify the student's international student office within 48 hours after the student terminates or departs their employment.

9. What are the student's responsibilities if authorized OPT?

Whether the student is participating in the standard or extended OPT, he/she must report to his/her school's international student office any change of:

• the student's name;
• the student's residential / mailing address;
• the name and address of student's employer;
• employment (starting date & ending date).

The student must contact his school every six months to verify the information above.

10. How does this ruling affect the OPT application process for F-1 students who have not yet completed their degree requirements?

The new ruling has extended the period during which an F-1 student may apply for post-completion OPT. The student may now file the OPT application up to 90 days before the completion of studies/ program end date and up to 60 days after. However, the student must file the OPT application within 30 days of the date the international student advisor enters the OPT recommendation into SEVIS and generates the OPT I-20 for the student.

11. Can unemployment become a problem for me?

Previously, the student was able to maintain F-1 status even if unemployed. Under the new ruling, the number of days of unemployment will be limited. During the standard post-completion OPT period, the student may not accrue more than 90 days of unemployment. If the student is granted a 17-month extension, the total number of days of unemployment increases to 120.

SEVP has indicated that it will not apply the unemployment provision to any student whose OPT was approved prior to April 8, 2008.

In a discussion with NAFSA, SEVP elaborated on unpaid employment during the standard period of OPT. SEVP said that students who are participating in unpaid internships, volunteer work in a position related to the student's field of study, or are self-employed may be considered "employed" during this regular OPT period.

However, during the 17-month extension period, the student must be engaged in a traditional paid position. At this moment, SEVP has not issued a written statement on the subject.

12. What are some of the outstanding issues?

Practice guidelines and technological adjustments are still evolving. Some of the unresolved issues are:

• SEVP must update SEVIS so that a 17-month recommendation can be submitted;
• SEVP must develop and release written operating instructions that will guide international student offices through the new procedures;
• SEVP must still consider travel during the interim period, the expansion of STEM, the employing institutions' action to the E-Verify requirement.
• International offices will need to revise its practices, informational venues and technology to comply with the new ruling.
  
  

Undoubtedly, many more questions will be generated as the community digests this new ruling.

13. Where can I find additional information related to this new ruling?

DHS announcement
Interim ruling
NAFSA
CIP codes
E-Verify information