USCIS Publishes Supplemental Questions and Answers Related to the Extension of Optional Practical Training Program for Qualified Students

On April 4, the Department of Homeland Security (DHS) issued an interim final rule that extended Optional Practical Training (OPT) for certain qualified F-1 students who are employed by a business participating in E-Verify. The rule also provided “cap gap” relief to students with an OPT expiration date prior to the start date of an approved H-1B petition. United States Citizenship and Immigration Services (USCIS) has recently published a set of supplemental questions and answers to provide additional guidance on this subject.

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 may be found 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 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).

The new guidance clarifies that with regard to the E-Verify requirement, the employer must be enrolled in E-Verify at each worksite where an F-1 OPT STEM student will be employed. For example, if an employer has previously registered its worksite in Phoenix for E-Verify and wants to employ an F-1 OPT STEM student at its worksite in San Francisco, the employer would need to register the worksite in San Francisco before employing the student. Unless there is state law requiring that all locations in the state be registered, it is only necessary to register the actual worksite(s) where the F-1 OPT STEM student will be employed.

Cap-Gap Relief

The term “cap gap” applies to students who have a pending or approved H-1B petition but whose period of admission (including post-completion OPT and 60-day departure period) expires before the October 1 start date.

The interim rule extended the authorized period of stay and the 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 for students in an approved period of post-completion OPT at the time of filing.

The new guidance clarifies that only students who are in an authorized period of post-completion OPT at the time their H1-Bs are filed are eligible for continued work authorization. If the student was in the authorized 60-day departure period, then the student’s status would be extended, but not his or her work authorization. In addition, students who take advantage of cap-gap relief once their EAD has expired are not authorized to return to the United States after travel and resume OPT employment, but would need to remain outside the United States until eligible to return in H-1B status.

Reminder Regarding Length of Cap-Gap Extension

As indicated by earlier guidance, OPT was extended until June 2, 2008 (the date announced by USCIS as the end of the receipting period) for students with a properly filed H-1B petition. Unless a receipt has been received by June 2, employers should assume that the student was not randomly accepted for processing for the H-1B and should not continue to employ the student if his or her EAD has expired.

How to Complete Form I-9

The guidance states the following documents are acceptable for complying with I-9 requirements:

For an F-1 OPT STEM student:

• Expired EAD
• USCIS receipt notice evidencing timely filed STEM extension application
• Endorsed I-20 indicating the recommendation for the extension

This satisfies the requirements for 180 days, unless the application is denied. If the extension is approved, the student will receive a new EAD which should be used for reverification.

For a student taking advantage of cap-gap relief:

• Expired EAD
• Endorsed I-20 indicating the recommendation for the extension
• Copy of the USCIS receipt notice for the H-1B petition

Please note that the cap-gap employment authorization will expire on September 30 and the student will need to be reverified no later than October 1.

How This Affects You

Employers wishing to hire F-1 OPT STEM students under the 17-month extension must ensure enrollment in E-Verify at the site where the student will be employed. In addition, students who take advantage of the cap-gap relief once their EAD card has expired will not be able to return to the United States after travel until eligible to return in H-1B status.

Morgan Lewis & Bockius will continue to monitor the H-1B cap situation and will provide further guidance as it becomes available. 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

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