DHS Releases Interim Rule Extending Optional Practical Training

DHS released an interim rule that will extend the Optional Practical Training (OPT) for certain F-1 students from 12 months to 29 months. The interim final rule will take effect once it is published in the Federal Register, anticipated to be published later this week.

The interim rule addresses three specific areas of concern: (1) The maximum period of OPT is increased from 12 months to 29 months for F-1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in USCIS' E-Verify online employment verification program. (2) The rule eliminates the "cap-gap" problem where a student's OPT and grace period will expire before the October 1 start date. If USCIS approves the H-1B petition, the F-1 student will have an extension of status that enables them to remain in the U.S. until the requested start date of the H-1B takes effect, presumably October 1. (3) The rule implements a procedural change wherein students can apply for OPT within 60 days of concluding their studies.

Extension of OPT by 17 Months

Under the current regulations, students in F-1 status who have been enrolled on a full-time basis for at least one full academic year in a U.S. college or university are eligible to apply for up to 12 months of OPT to work for a U.S. employer in a job directly related to the student's major area of study. The interim rule allows an F-1 student already in a period of approved post-completion OPT to apply for an additional 17 months (for a maximum total period of 29 months of OPT), if that student's degree as shown in SEVIS is a bachelor's, master's, or doctorate degree with a degree code that is on the current STEM Designated Degree Program List. To be eligible for the 17-month OPT extension, a student must have received a degree in one of the following fields:

Actuarial Science
Computer Science (except Data Entry/Microcomputer Applications)
Engineering
Engineering Technologies
Biological and Biomedical Sciences
Mathematics and Statistics
Military Technologies
Physical Sciences
Science Technologies
Medical Scientist (MS, Ph.D.)

DHS has noted that this list is subject to change. Students who wish to extend OPT must request that their Designated School Official (DSO) recommend the 17-month extension through SEVIS. Once the DSO recommends the student for an extension, the student must apply for extension of his or her work authorization through USCIS. An F-1 student who has properly filed Form I-765 to extend his or her work authorization prior to the end date of his or her post completion OPT is allowed to maintain continuous employment for up to 180 days while the I-765 application remains pending.

This extension will only be available to F-1 students with STEM degrees who have accepted employment with an employer registered and in good standing with USCIS' E-Verify employment verification program. Additional information on the E-Verify program can be found below.

Under the interim rule, DHS will only extend post-completion OPT for students whose employers agree to report when an F-1 student on extended OPT terminates or otherwise leaves his or her employment prior to the end of the authorized OPT period. Employers must report this information to the DSO no later than 48 hours after the student leaves employment. The DSO's contact information can be found on the student's Form I-20.

"Cap-Gap" Relief

Currently, F-1 students are given a 60-day grace period to depart the U.S. after the expiration of their OPT. Those students who are the beneficiaries of an approved H-1B petition, but whose F-1/OPT status (including the 60-day grace period) expires before the H-1B employment start date, have a gap in authorized stay and employment. This situation is commonly referred to as the “cap-gap.” The interim rule allows for an automatic extension of status and employment authorization for F-1 students with pending H-1B petitions. If USCIS denies a pending H-1B petition, the student will have the standard 60-day period (from notification of the denial or rejection of the petition) before they have to leave the U.S. Unlike the extension of post-completion OPT, the extension of status for F-1 students in a cap-gap situation applies to all F-1 students with pending H-1B petitions, regardless of whether they have obtained a STEM degree.

Other Changes to OPT Requirements

Currently, students must apply for post-completion OPT prior to completing their studies. The interim rule will allow students to apply for post-completion OPT during the 60-day grace period following the conclusion of their studies.

The interim rule also clarifies how much time a student may be unemployed under OPT while still remaining in valid F-1 status. The interim rule specifies an aggregate maximum allowed period of unemployment of 90 days for students on 12-month OPT. This maximum period increases by 30 days (to 120 days) for F-1 students who have been approved for the 17-month extension.

As a reminder, the interim rule only becomes effective once it is published in the Federal Register. In the meantime, please do not hesitate to contact us should have questions about how the rule could impact your employees' work authorization in the U.S.

USCIS' E-Verify Employment Verification Program

Pursuant to DHS' release of an interim rule that would extend from 12 to 29 months the post-completion OPT period for certain F-1 students, we wanted to provide a brief summary of the E-Verify program, including the benefits and risks to an employer enrolling in the program. Only students employed by employers enrolled in the E-Verify program will be eligible for the 17-month extension of OPT.

E-Verify is an internet-based system operated by USCIS in partnership with the Social Security Administration (SSA). E-verify is currently free and available in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. In fact, many states have now enacted laws that require certain employers to participate in the program. Currently there is no federal requirement for employers to participate.

E-Verify electronically compares information on the Form I-9 with SSA and DHS databases to help employers verify the identity and work authorization of newly-hired employees. In order to participate in the E-Verify program, employers must enter into a Memorandum of Understanding (MOU) with DHS and SSA that spells out the responsibilities of the parties. The MOU requires, among other things, that employers verify all new hires, including newly-hired OPT students with 17-month OPT extensions, once enrollment in the E-Verify program is complete. A Form I-9 is still completed for each new hire, but the employer is responsible for entering the new hire's information into the E-Verify website and verifying their work authorization within three days of hire. Specific procedures are outlined to resolve instances where a newly-hired employee's identity or work authorization cannot be verified. E-Verify cannot be used for pre-employment screening of job applicants or to verify the employment of current employees.

The MOU also requires the employer to agree to allow DHS and SSA to make periodic visits for the purpose of reviewing E-Verify-related records, i.e., Forms I-9 and SSA and DHS confirmation records. In addition, the employer agrees to allow DHS and SSA to interview the employer, employees handling the program, and employees hired during participation in E-Verify concerning their experience with the program. This is an important obligation under the MOU and requires careful consideration. Employers can register for E-Verify online at www.uscis.gov/e-verify.

We advise employers to contact us immediately if you are considering registering for the E-Verify program. We will carefully review the MOU with you and outline the terms and employer obligations. Since enrollment in the E-Verify program imposes very specific obligations on the employer, it is important to understand and weigh the program's risks and benefits before making a final decision.