GENERAL INFORMATION ABOUT THE OPTIONAL PRACTICAL TRAINING INTERIM FINAL RULE (IFR) (FIRST PART)

Lal Varghese, Attorney at Law, Dallas

The new rule was published in the Federal Register on April 8, 2008. This rule establishes two new provisions that apply to all F-1 students eligible for post-completion OPT. First, extends the period in which a student may apply for post-completion OPT to 60 days after the student’s program end date. Second, establishes a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status. For students on regular post-completion OPT or an automatic extension due to the cap-gap provisions, the limit is 90 days. Students with an approved STEM OPT extension will receive another 30 days of unemployment time for a total of 120 days over the entire period of post-completion OPT.
These provisions apply to F-1 students who are the beneficiaries of an H-1B petition who, due to the cap on the number of H-1B petitions accepted in a given year, cannot begin employment until the beginning of the fiscal year following the fiscal year in which the H-1B petition was filed. In the past, the F-1 status for these students often expired before their H-1B status began — a period known as the cap gap. This provision of the new rule automatically extends the F-1 status and, for students on post-completion OPT, the employment authorization for students formerly subject to the cap gap.

This rule allows F-1 students who are on a period of post-completion OPT approved after earning a bachelor’s, master’s, or doctoral degree in a science, technology, engineering, or math (STEM) program that is on the list of designated STEM degrees to apply for a 17-month extension of their post-completion OPT. OPT is training that is directly related to an F-1 academic student’s major area of study. It is intended to provide students with practical experience in their field of study during or upon completion of a degree program.
An F-1 academic student who has attended an SEVP-certified college, university, conservatory, or seminary on a full-time basis for at least one academic year may be authorized up to 12 months of OPT per program level. However, F-1 students who have one year or more of full-time curricular practical training are not eligible for OPT for that degree. Pre-completion OPT is OPT authorized to be worked before the student’s program end date. Students with approved pre-completion OPT may work up to 20 hours per week while school is in session. Students who are eligible to register for the next term, and who plan to do so, may have approval to work full time when school is not in session.

is Policy Guidance uses the term cap gap to refer to the period of time between the time a nonimmigrant’s F-1 student status would ordinarily end and his or her H-1B status begins. Under the previous regulation, the cap gap occurred when an F-1 student was the beneficiary of a successful H-1B petition, but his or her F-1 status ended before his or her H-1B status began. The time between the end of the F-1 status and beginning of H-1B employment was referred to as the cap gap. The most common situation occurred when the student’s OPT ended in the spring or early summer, and his or her F-1 status expired 60 days after that, leaving a gap of several months before the individual’s H-1B status began on October 1. Under the previous regulation, DHS could remedy this problem by publishing a Federal Register notice allowing students to remain in status in order to span the cap gap. However, this remedy was not automatic and did not allow the student to continue OPT during the gap period. This rule automatically extends the student’s F-1 status and work authorization.

Under the new rule, the cap-gap extension is a period in which an eligible F-1 student’s status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student’s post-completion OPT is also automatically extended. A period of OPT that has been extended beyond the date on the F-1 student’s employment authorization document during an authorized cap-gap extension. An additional 17-month period of OPT granted to a student on post-completion OPT who meets the qualifications in 8 CFR 214.2(10)(ii)(C).

The 60-day period of time given to F-1 students after the completion of a program of study or an authorized period of post-completion OPT allowing the student time to prepare for departure from the United States, apply for a transfer to another SEVP-certified school, request a change of level to continue at the current school, or take steps to otherwise maintain legal status. The time spent without a qualifying job during post-completion OPT. Except as noted in the section on what counts as time unemployed, each day that the student is not employed in a qualifying job is counted toward the limit on unemployment time. The limit is 90 days for students on post-completion OPT, including those with a cap-gap extension, except that students with a STEM OPT extension are given an additional 30 days of unemployment time for a maximum of 120 days.

F-1 students may apply for post-completion OPT up to 90 days before their program end date and up to 60 days after their program end date. The application must be properly filed with the correct USCIS Service Center. In addition, the application must be properly filed within 30 days of the date the student’s DSO recommends OPT in SEVIS. A student should ask his or her DSO to recommend post-completion OPT within 30 days of the date the student expects the application to arrive at the USCIS Service Center. If the OPT recommendation in SEVIS is dated more than 30 days prior to the receipt date, the application may be denied. A student may file the request for post-completion OPT no more than 90 days prior to the student’s program end date. A student may file for OPT up to 90 days before he or she completes a full academic year.
If the student has already completed a full academic year, he or she may apply for OPT up to 90 days in advance of the requested employment start date. A student may file for the 17-month STEM extension up to 120 days prior to the end of his or her post-completion OPT. The new regulatory provisions differentiate between pre-and post-completion OPT in the application process and in the requirements for maintaining employment and it cannot be combined. Any OPT authorization ends on the transfer release date for a student who requests a transfer to another SEVP-certified school or a change of education level to continue at the same school. Students on post-completion OPT may accrue up to 90 days of unemployment. Students who have OPT extended due to the cap-gap provisions continue to accrue unemployment time and are subject to the 90-day limitation on unemployment. Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period. (To be continued in the next issue)

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including the web sites of Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You are also requested to visit our law firm website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa@yahoogroups.com for more information about other related immigration matters. You can contact Attorney Lal Varghese at (972) 788-0777 or at (972) 788-1555, Fax (972) 556-1109 or at E-Mail: attylal@aol.com for any questions regarding this article free of any charges. We will also do an initial consultation on any immigration related legal matter on the phone free of any charges maximum to a length of five minutes as a special service to the community.