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[Previous entry: "USCIS posted supplemental Q & As to its website regarding the 4/4/08 interim final rule extending optional practical training (OPT) for qualified F-1 nonimmigrant students."] [Main Index] [Next entry: "Department of Labor Changes to PERM Processing"]
06/10/2008 Entry: "USCIS provides further guidance on regarding extensions of Optional Training Program for Qualified Students"
The U.S. Department of Homeland Security released an interim final rule on April 4, 2008, extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension is available to F-1 students with a degree in science, technology, engineering, or mathematics (STEM) who are employed by businesses enrolled in the E-Verify program.
The rule also addresses situations in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.
Who qualifies for the STEM optional OPT Extension? If you had an H-1B petition that was filed during the H-1B acceptance period, while your authorized duration of status (D/S) admission was still in effect. The interim final rule also states that the D/S admission includes the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period.”
The interim final rule further states that once a timely filing has been made, the automatic cap gap extension will continue until September 30, if the petition is selected and approved, unless it is subsequently rejected, denied, or revoked. Students are strongly encouraged to stay in close communication with their employer during the cap gap extension. A Form I-797, Notice of Action, with a valid receipt number, is evidence that the petition was filed and accepted.
As for those students whose OPT expires before their October 1st start date, as long as you were in a valid grace period on April 1, you would benefit from an automatic extension of D/S admission, if the H-1B petition was filed during the H-1B acceptance period. The employment authorization, however, would not be extended automatically, because it already expired and the cap gap does not serve to reinstate or retroactively grant employment authorization.
For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to discovery of a status violation. Such a student in any event is not eligible for the automatic cap gap extension. Similarly, the 60-day grace period would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.
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