DHS Rule Extends OPT for Certain F-1 Students

On April 4, 2008, the U.S. Department of Homeland Security (DHS) issued an interim final rule which allows for the extension of post-graduation optional practical training (OPT) employment authorization for many F-1 students, including individuals whose OPT would expire prior to the effective date of a cap-subject H-1B.

Perhaps most significantly, the rule alleviates the so-called "cap-gap" problem for individuals whose F-1 status expires after the filing of a cap-subject H-1B petition but prior to its effective date. The rule automatically extends the F-1 status and OPT employment authorization of all F-1 students who are beneficiaries of approved or pending cap-subject H-1B petition and change of status applications with a requested start date in the next fiscal year. Under the rule, such individuals' OPT is automatically extended until October 1 of the fiscal year for which the H-1B has been requested, thus avoiding a gap in authorized stay and continuous employment. Importantly, the automatic extension is only available for F-1 students who have been selected for adjudication under the H-1B cap. Thus, individuals who are not beneficiaries of approved or pending H-1B petitions may not avail themselves of this benefit. Note that per the language of the final rule, the foreign national's employer must have requested a change of status on the H-1B petition. Thus, it appears that this provision does not apply to foreign nationals whose employers have filed the H-1B petition with a request for consular notification. However, it may be possible to request an amendment, from consular notification to change of status, and avail oneself of this benefit. Also note that the automatic extension terminates immediately if the H-1B petition filed on the F-1 student's behalf is rejected, denied, or revoked.

Although not addressed in the final rule, international travel before an H-1B change of status request is approved would invalidate the change of status, per current DHS policy, and therefore may also invalidate an automatic extension of OPT. This is because the final rule states that the automatic OPT extension is only available so long as a change of status request is pending or approved.

In addition, the interim final rule expands the maximum period of available OPT from 12 months to 29 months for F-1 students who have earned a bachelor's, master's or doctoral degree in a science, technology, engineering, or mathematics (STEM) field in the U.S. To be eligible for this additional period, the STEM degree for which the F-1 student has secured his or her OPT must have been in one of the degree programs on the current STEM Designated Degree Program List. Also, the student must be employed by an organization which is enrolled in DHS' "E-Verify" program.

To obtain such an extension, eligible F-1 students must request a recommendation from their Designated School Official (DSO) and thereafter file a Form I-765, Application for Employment Authorization, prior to the expiration date of their current OPT employment authorization. So long as the extension application is timely filed, the F-1 student's OPT is automatically extended for up to 180 days until a final decision is made by DHS. Employers of such F-1 students are required to inform the student's DSO if the student's employment ends prior to the expiration of the OPT. Similarly, students with approved 17-month extensions must notify their DSO within ten days of any change in legal name, address, or employment status. They must also make a validation report to the DSO every six months.

In addition to the above, the final rule implements changes related to the timing of initial OPT requests, as well as periods of unemployment during approved OPT. Specifically, F-1 students may now apply for OPT during the 60-day grace period following the completion of their studies. Previously, F-1 students were required to apply for post-completion OPT prior to completing their degree requirements. Further, the rule limits the time in which an F-1 student may be unemployed during the validity of their OPT. F-1 students who have been approved for a 12-month OPT now fall out of status if they are unemployed for an aggregate period exceeding 90 days during their OPT time. Students who have been approved for a total period of 29 months of OPT fall out of status if they have an aggregate period of unemployment of more than 120 days during the OPT validity.