April 8, 2008

Cap Gap - Status & Work Authorization Extensions for F-1 Students

The U.S. Department of Homeland Security (DHS) announced that it plans to release an interim final rule extending the period of Optional Practical Training (OPT) from 12 to 29 months for certain qualified F-1 non-immigrant students.

Employment may be authorized under the OPT program to an F-1 student who has been lawfully enrolled on a full time basis, in an approved college, university, conservatory, or seminary for one full academic year. An eligible student may request employment authorization for practical training in a position that is directly related to his or her major area of study. There are two kinds of practical training, curricular and optional. A student may begin OPT on the date indicated on his or her employment authorization document, Form I-766 or Form 688B.

STEM: DHS’ newest Acronym

The proposed rule provides OPT extensions of 17 months for F-1 students satisfying two criteria:

1. Obtaining a degree in science, technology, engineering, or mathematics (STEM); and
2. Employed by businesses enrolled in the E-Verify program. E-Verify is a voluntary web-based system that electronically verifies the employment eligibility of all newly-hired employees. For more information, please refer to our eVerify corner.

These new privileges come with additional responsibilities as well, including:

1. Employers are required to report the student's departure from employment to the school DSO within 48 hours.
2. Students must report to the to the school DSO every 6 months from the date the OPT extension starts to verify their employment and residence.

To be eligible for the 17 month OPT extension, an F-1 non-immigrant student must:

• Currently participate in a 12-month period of approved post-completion OPT;
• Successfully complete a degree in STEM;
• Work for a U.S. employer in a job directly related to the major area of study;
• Work for, or accept employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program; and
• Properly maintain F-1 status.

CAP GAP for all F-1 Students

In addition, the rule addresses the status and work authorization of all F-1 students completing their studies and seeking H-1B status. Due to the fact that the issuance of new H-1B visas is capped at 65,000 per year; and that H-1B status cannot take effect until the first day of the fiscal year, October 1st, many F-1 students and their sponsoring employers run into two critical problems: a gap in valid status and a gap in work authorization. Generally an F-1 student is eligible for 12 months of OPT post graduation. Since the OPT is issued after graduation which generally occurs in May, June or July, the 12 months of OPT authorization elapse before the H-1B takes effect on October 1.

The interim final rule addresses this problem by providing the following extensions for all F-1 students who have a pending or approved H-1B petition requesting a change of status from F-1 to H-1B:

• Automatically extends the period of stay in F-1 status to cover the time between the completion of OPT (plus 60 day grace period) and October 1, this is often referred to as the “cap gap.” This revision allows employees to remain the U.S., without having to leave to obtain a new H-1B visa stamp from abroad and return in October; and
• Automatically extends work authorization issued pursuant to OPT. The work authorization is extended until October 1, when the H-1B takes effects. This revision allows employees to continue working for sponsoring employers without a gap in work authorization.

The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation. Interestingly enough, this rule also tackles one of the issues that often comes up for both employers and students: maintenance of status. Specifically, when as student finds himself “unemployed” during their authorized OPT period, the current regulations do not provide any clear guidance on the status of the student. The new rule addresses this, noting that similar to an F-1 student losing status when he/she is not enrolled in a full time course of study, an F-1 student who is unemployed for an aggregate of 90 days on a 12 month OPT is considered to have lost the F-1 status (120 days for those with 17 month extension). With this notation in the regulations, it will be more and more important for students to track their unemployment as losing status will impact what types of immigration benefits a foreign national will be eligible for. We anticipate maintenance of status will be reviewed during a change of status as well as by the DSOs during check-ins.

GT will continue to provide updates on the progress and implementation of this rule.