DHS Extends Optional Practical Training (OPT) For Certain Students

On April 4, DHS issued an interim final rule that will extend OPT for 17 months for certain qualified F-1 students who are employed by a business participating in E-Verify.

The rule also provides “cap-gap” relief to students with an OPT expiration date prior to the start date of an approved H-1B petition.

OPT 17-Month Extension
In order to apply to extend OPT for an additional 17 months, an F-1 nonimmigrant student must:

• Currently be participating in a 12-month period of approved post-completion OPT
• Have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program (the approved list will be published at http://www.ice.gov/sevis)
• Be working for a U.S. employer in a job directly related to the student’s major area of study
• Be working for, or have accepted employment with, an employer enrolled in the E-Verify program (for more information regarding the E-Verify program, please visit http://www.uscis.gov/files/nativedocuments/E4_english.pdf)
• Properly maintain his/her F-1 status

The STEM Designated Degree Program List lists the following degrees: Actuarial Sciences, Computer Science (except Data Entry/Microcomputer Applications), Engineering, Engineering Technologies, Biological and Biomedical Sciences, Mathematics and Statistics, Physical Sciences, Science Technologies, and Medical Scientist (MS, PhD).

Students who wish to extend OPT must request recommendation from their Designated School Official (DSO). The DSO must verify the student’s eligibility, certify that the student’s degree is on the STEM Designated Degree Program List and ensure the student is aware of his/her responsibilities for maintaining status while on OPT. Upon recommendation by the DSO, the student must submit Form I-765 with the appropriate fees to USCIS.

Students seeking an extension must report the following to the (DSO) of his/her school and verify the information every six months from the date of the OPT extension:

• Name change
• Residential and mailing address
• Name and address of employer

Employers of F-1 students who qualify for the above-mentioned extension must report termination of the student’s employment prior to the end of the authorized OPT employment period to the student’s DSO within 48 hours.

The interim final rule also extends the EAD of a student who has properly filed Form I-765 prior to the end date of his/her post-completion OPT for up to 180 days while USCIS adjudicates the request for extension, during which time the student is allowed to maintain continuous employment.

What Is E-Verify?
E-Verify is a web-based program operated by USCIS in partnership with the Social Security Administration. E-Verify provides employers with a determination of a new hire’s employment eligibility by comparing information provided by the new employee on Form I-9 with database records. For more information on E-Verify, employers should carefully study the E-Verify Memorandum of Understanding, in which an employer’s obligations and responsibilities are described, which can be found at: http://www.uscis.gov/files/nativedocuments/MOU.pdf. Employers considering participation in E-Verify should consult with immigration counsel before making a final decision.

Cap-Gap Relief
The term “cap-gap” applies to students who have an approved H-1B petition but whose period of admission (including post-completion OPT and 60-day departure period) expires before the October 1, 2008 start date. The interim rule extends the authorized period of stay and work-authorization of an F-1 student who is the beneficiary of a timely-filed H-1B petition that has been granted by, or remains pending with, USCIS until October 1.

Changes to OPT Requirements
The interim final rule allows students to apply for post-completion OPT during the 60-day departure period. In addition, the rule specifies an aggregate maximum allowed period of unemployment of 90 days for students with 12-months of OPT, and an additional 30 days for students who receive the additional 17 months.

How This Affects You
The cap-gap relief will allow companies to continue to employ students in a period of post-completion OPT with a pending or approved H-1B petition without interruption through the October 1 H-1B start date. If the H-1B petition is denied or rejected, the student would not be eligible for such relief, but will have the standard 60-day period (from notification of denial or rejection of the H-1B petition) to depart the United States. There is no E-Verify requirement for the cap-gap benefit. The 17-month OPT extension, however, is limited to students who, in addition to satisfying the requirements listed above, have obtained STEM degrees and will work for employers who participate in E-Verify.

Morgan Lewis will continue to monitor this situation and will update you on any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

San Francisco
A. James Vázquez-Azpiri 
415.442.1343 
ajvazquez@morganlewis.com

Lance Nagel 
415.442.1345 
lnagel@morganlewis.com

Washington, D.C.
Eleanor Pelta 
202.739.5050 
epelta@morganlewis.com

Eric S. Bord 
202.739.6040 
ebord@morganlewis.com

About Morgan, Lewis & Bockius LLP
Morgan Lewis is a global law firm with more than 1,400 lawyers in 22 offices located in Beijing, Boston, Brussels, Chicago, Dallas, Frankfurt, Harrisburg, Houston, Irvine, London, Los Angeles, Miami, Minneapolis, New York, Palo Alto, Paris, Philadelphia, Pittsburgh, Princeton, San Francisco, Tokyo, and Washington, D.C. For more information about Morgan Lewis or its practices, please visit us online at www.morganlewis.com.