Global Education

Introduction to New OPT Regulations

Dear International Students:

Thank you for your prompt response to our recent OPT validation project questionnaire. Please continue to forward changes to your current address and employer information (name/address) to us within 10 days of any move / change of employment.

As most of you are by now aware, the Department of Homeland Security (DHS) has recently published in the Federal Register, an Interim Final Rule which modifies F-1 Optional Practical Training (OPT) regulations. Written comments will be accepted by the DHS until June 9, 2009. A Final Rule should be available within a few months thereafter. In the meantime, we hope that the following information proves helpful to you as you attempt to understand these changes.

There are three categories of changes listed below – Please read each category carefully.

  1. Initial 12 Months of OPT
  2. H1b “Cap Gap” Automatic Extensions of Duration of Status & Work Authorization until October 1
  3. 17-Month Extension of OPT (up to 29 Months) for Degree Holders in Science, Technology, Engineering, Mathematics (STEM)

A. INITIAL 12 MONTHS OF OPT: ALL current OPT students should read this section carefully

There are a few changes to your reporting requirements and employment conditions during an initial 12-Month Period of OPT. Report to the OGE within 10 days:

  1. If you officially change your name
  2. If you move, report your new address
  3. Any change of immigration status
  4. Permanent departure from the US to return to your home country

New Employment Requirements: In addition, new OPT regulations state that maintenance of F-1 OPT status is now dependent upon your employment. After the initial OPT has been approved by USCIS, you may not be unemployed for more than a total of 90 days without jeopardizing your status. Any days of unemployment prior to April 8, 2008 will not be counted towards your total number allowed. However, more than 90 days of unemployment AFTER April 8, 2008, may affect your eligibility for future benefits.

It is important that you share the following employment information with us so that we may make the required updates to your SEVIS record in a timely manner. Report to the OGE within 10 days:

  1. Your employer name and address when hired.
  2. If you terminate your employment.
  3. New employer name and address when resuming employment.

Note: The employment does not have to be paid employment. A student who is self employed (ie performance majors with regular “gigs”), interning or volunteering in a position directly related to your academic field would be considered as “employed” to meet your requirements. Information about these positions needs to be reported to the OGE.

B. H1B “CAP GAP”: AUTOMATIC EXTENSIONS OF DURATION OF STATUS & WORK AUTHORIZATION UNTIL OCTOBER 1

In the past, students whose OPT authorization expired before the H1b start date would have to seek alternative study options in order to maintain their immigration status through October 1 st – or students would depart the US and return after the H1b went into effect.

Under the new rule, the F-1 status of a student on OPT as well as his/her work authorization will be automatically extended until October 1 st& when the student’s employer has “timely filed” an H-1B petition with an October 1 st employment start date. This extension of status / work authorization applies to all Majors (not just STEM majors, see below). The automatic extension of status for the F-1 student also applies to the duration of status of his/her F-2 dependents.

In order to be eligible for this benefit, the student must not have violated the terms or condition of his/her nonimmigrant status.

A separate application for this extension is not required. The extension is provided automatically to students meeting general requirements.

Note: The automatic extension of stay / work authorization immediately terminates if USCIS rejects, denies or revokes the H-1B petition. In this case, a student would have a 60 grace period from the denial receipt date to remain in the US while preparing to depart, change degree level / transfer to begin a new program of study, or change status to another category.

C. 17 MONTH EXTENSION OF OPT (up to 29 Months total) for Degree Holders in Science, Technology, Engineering, and Mathematics (STEM majors)

GENERAL INFORMATION: The new rule enables international students who have graduated with a bachelor’s, master’s, or doctoral degree in certain STEM fields and are employed to apply for a one-time 17-month extension of their initial 12-month OPT (for a total 29 months).

STUDENT ELIGIBILITY REQUIREMENTS:

  1. Fields of study: The field of study on which the application for the 17-month extension of OPT is based must be one that appears on the Department of Homeland Security’s (DHS) STEM Designated Degree Program List. In order to be eligible for this extension, applicants must be currently engaged in a 12-month initial period of OPT based on a designated STEM degree. These STEM approved fields of study are currently limited to the following majors:
    • Computer Science
    • Engineering (Civil, Computer, Electrical, Mechanical, and Software)
    • Biological Sciences
    • Chemistry
    • Math and Statistics
    • Physical Science
    • Geology
    • Physics
  2. Completion of Academic Degree: The applicant must have successfully graduated with a Bachelor’s, Master’s, or doctoral degree in a field on the DHS STEM Designated Degree Program List. Graduate students who have met all requirements for the Master’s degree with the exception of the Thesis or Project, but have not graduated yet, are NOT eligible for this benefit.
  3. Employment / Field of Employment: The applicant must have been approved for an initial 12-month period of OPT and currently working for a US employer in a position directly related to their field (employment must be at an appropriate level based on education). The employment used as the basis for the 17-month extension must be “paid employment”. While a volunteer position may be eligible to show “employment activity” during your initial 12 months of OPT, unpaid employment does not qualify for the 17 month extension.

EMPLOYER ELIGIBILITY REQUIREMENTS/EMPLOYER RESPONSIBILITIES

  1. As the extension is limited to certain STEM fields, the employer will need to write a statement verifying how the OPT student’s employment relates to the STEM field.
  2. The OPT student’s employer must be registered with E-Verify (and be considered in good standing in that program by the US Citizenship and Immigration Services). E-Verify is a free internet based system operated by the Department of Homeland Security and the Social Security Administration that assists employers in verifying the employment eligibility of new employees.
    Note: An employer must agree to E-Verify all future employees (both American and Foreign) during the hiring process.
  3. The employer must agree to report the termination or departure of an OPT employee to the Designated School Official (DSO) at the student’s school. Such reporting must be made within 48 hours of the event.

RESTRICTIONS/LIMITATIONS

  1. This 17-month extension is available only once during a student’s lifetime. A student is NOT eligible to receive an extension more than once, regardless of degree level.
  2. The extension can only be granted in one 17 month period; the extension cannot be “split” into 2 periods.
  3. OPT extension must be based on a current period of Post Completion OPT period based on completion of a Bachelor’s, Master’s, or Phd in one of the designated STEM fields. Non-STEM fields are not eligible for the extension. Previous degrees in STEM areas are also not eligible.
  4. Students granted a 17-month OPT extension may not accrue more than 120 days of unemployment during the total 29-month OPT period (initial OPT + extension of OPT).
  5. Students may change employers after being approved for a 17 month extension. Change of employer is not advised while the extension application is pending as the I-765 lists a specific employer.
  6. After applying for an extension, students may NOT be concurrently employed with a non-E-Verify employer. While on a 17 month extension, students are only allowed to be employed by employers who are registered with E-Verify.
  7. OPT students cannot be unemployed for more than 90 days total during their initial 12 month period of OPT (unemployment days prior to April 8, 2008 will not be considered). Students with more than 90 days of unemployment during their initial 12 months of OPT may have applications for future benefits denied. Days of unemployment will be calculated beginning with either the OPT start date requested or the date the employment authorization is adjudicated, whichever is later.

APPLICATION PERIOD/AUTHORIZED EMPLOYMENT PERIOD

Application packets with detailed instructions will be available in the OGE soon. A complete application packet will include the following:

  1. Documentation from Employer: The employer will need to complete an "Employer’s Responsibilities Contract" (this document will be in the OPT application packet from the OGE). This contract will require the following information:
    • Employer's Name and Address
    • Students Supervisor Name, Title and Contact Information
    •  Employer's E-Verify Company Identification Number or a Valid E-Verify Client Company Identification Number
    • Employer statement verifying how the OPT student’s employment relates to the STEM field.
    • Employer agreement to report within 48 hours an OPT student’s termination or departure from the company to the Designated School Official at the Sacramento State Office of Global Education or through “any other means or process identified by the DHS”. The regulations state that an employer “shall consider a worker to have departed when the employer knows the student has left the employment or if the student has not reported for work for a period of 5 consecutive business days without the consent of the employer, whichever occurs earlier.
  2. Verification of Degree Completion: Obtain evidence confirming completion of a Bachelor’s, Master’s or Phd in an approved STEM field. Qualifying evidence include:
    •  Official University Transcripts with degree posted
    • Unofficial University Transcript with degree posted
    • Photocopy of diploma (as long as program of study and degree level completed are clearly stated).
  3. I-765 Form and Fee: Non-refundable $380.00 application fee payable to the Department of Homeland Security.
  4. New SEVIS I-20 issued for a 17 month extension
  5. Copies of current OPT EAD, passport, visa, I-94 and I-20 issued for initial OPT
  6. 2 Passport Photos (recommend – confirmation from USCIS forthcoming)

Bring all forms/documentation/information listed above to the Office of Global Education. The International Student Advisor (DSO) must verify your eligibility, certify that your degree is on the STEM Designated Degree Program List, ensure that you are aware of your responsibilities for maintaining status while on the 17-month OPT extension, recommend the 17-month OPT extension in SEVIS, and prepare and endorse a new SEVIS I-20 to accompany your application packet.

NOTE: Applications should be mailed to the USCIS Center for the state of current residence (which is not necessarily the USCIS Center which processed the initial 12 month OPT).

APPLICATION DEADLINE

Applications must be submitted prior to the expiration date of the 12-month initial OPT employment authorization as listed on the OPT EAD.

STUDENT REPORTING REQUIREMENTS

Students approved for 17-month OPT extension are required to report the following to their International Student Advisor in the OGE within 10 days of any change:

  1. Any change of name
  2. Any change of address
  3. Any change of immigration status
  4. Permanent departure from the US to return to your home country
  5. Change of Employer name
  6. Change of Employer address
  7. Any loss of employment
  8. New employer name and address when resuming employment.

In addition, students are also required to:

Make a comprehensive validation report (of all of the above data) every six months upon approval of OPT extension until the extension ends or other action is taken (change status, depart US, return to university etc..

We hope that this information proves helpful to you. Please feel free to contact us if you have any questions concerning these matters.

Eric Merchant and Tracey Culbertson

Thank you

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