According to the advance copy of an interim final rule issued by the
Department of Homeland Security (DHS) on F-1 students’ Optional Practical
Training (OPT), certain F-1 students will be eligible for a 17 month
extension of OPT (extending the overall period from 12 to 29 months). The
Office of Management and Budget (OMB) has finished reviewing the rule. On
April 4, 2008, DHS provided an advance copy of the rule. The rule will not
become effective until it is published in the Federal Register, which is
expected to happen sometime during the week of April 7. Since the rule has
not been published and the agency has not released the official
clarifications on many issues, information provided here is Attorney Jeff Z.
Xie’s own research findings or interpretation and is intended as a public
service and should not be construed as legal advice or official
interpretation of the rule.
Who are eligible for the 17 months extension?
The 12 month limit on F-1 Optional Practical Training (OPT) will be extended
by 17 months, for a total of 29 months, for certain STEM degree holders (
Science, Technology, Engineering, Mathematics) in the following fields:
* Actuarial Science. CIP Code 52.1304.
* Computer Science Applications:
** CIP Codes 11.xxxx (except Data Entry/Microcomputer Applications)
** 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
What are the requirements?
* Student must be currently participating in a 12-month period of OPT, working for a U.S. employer in a job directly related to the student’s major area of study.
* Student must have successfully completed a Bachelor's, Master's,or Doctoral degree in a field on the DHS STEM Designated Degree Program List, from a SEVIS-certified college or university.
* Student must have a job offer from an employer registered with the E-Verify employment verification system.
* The school DSO must recommend the 17-month OPT extension in SEVIS, after verifying the student's eligibility, certifying that the student's degree is on the STEM Designated Degree Program List, and ensuring that the student is aware of his or her responsibilities for maintaining status while on OPT.
* Student will have to apply for the 17-month extension on Form I-765 with fee. DHS is revising the Form I-765 and it is not clear when the application form is available.
* Students who timely file an application for the 17-month OPT extension will be able to continue employment while the extension application is pending, until a final decision on the I-765 or for 180 days, whichever comes first.
Other important information about F-1 students’ OPT and “GAP” issues
* H-1B cap-gap extension of D/S and work authorization until October 1. Duration of status and work authorization will be extended for a student on OPT, who is the beneficiary of a timely-filed H-1B petition requesting an employment start date of October 1 of the following fiscal year. This would apply to all students on OPT, not just STEM students. The extension of duration of status and work authorization would automatically terminate upon the rejection, denial, or revocation of the H-1B petition
filed on the student's behalf. This is good news to other OPT students in general.
* I-765 filing window. Under the new rule, a student will be able to file his or her I-765 up to 90 days prior to his or her program end date, and up to 60 days after his or her program end date. If a qualified OPT foreign student has not been able to get the H-1B filed before the H-1B filing window (probably April 7, 2008), he/she should file the 17 months extension up to 90 days prior to the OPT card expiration date.
* Duration of employment authorization. Employment authorization will begin on the date requested or the date the employment authorization is adjudicated, whichever is later. Exception: The employment authorization period for the 17-month OPT extension begins on the day after the expiration of the initial post-completion OPT employment authorization, and ends 17 months later, regardless of the date the actual extension is approved.
* Limited Periods of Unemployment to Maintain Status
** During post-completion OPT, F-1 status is dependent upon employment.
** Students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT carried out under the initial post-completion OPT athorization.
** Students granted a 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total 29 month OPT period.
* Employer’s Responsibilities The rule has imposed several responsibilities on the employers who hire foreign students. For example, the employer must register with the E-Verify employment verification system. The employer must agree to report the termination or departure of the student to the DSO or through "any other means or process identified by DHS." An employer must consider a worker to have departed when the employer knows the student has left employment, or if the student has not reported
for work for a period of 5 consecutive business days without the employer's
consent. The employer is required to make the reporting within 48 hours of
the event.
Xie Law Offices, LLC. has expertise in employment areas of immigration law ranging from business and education related immigration to private investors. We provide comprehensive immigration-related services to clients around the world representing corporations, educational institutions, businesses, and individual clients. We provide life time free consultation on immigration matters to our clients (corporate and individual) and free general immigration consultation to our potential or future clients. However we restrain from answering questions from someone to questions pertaining to a specific case being handled or represented by another attorney. We
offer our clients a simple and reasonable fee schedule. No fee will be charged unless we are handling the cases. Contact us at help@xielaw.com Telephone: (678)380-0698。 Address：1770 Indian Trail Lilburn Road, Suite 450, Norcross(Atlanta), Georgia 30093. Website：www.xielaw.com
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