Cap Gap Solution for F-1 Students Announced by DHS

The United States Immigration and Customs Enforcement (“ICE”) agency published an interim final rule in the Federal Register on April 8, 2008. The rule responds to the situation in which an F-1 student’s status and work authorization expires before he or she can begin employment under an approved H-1B petition. The rule also allows for OPT extension for up to twenty nine (29) months (an additional 17 months is applied to the standard 12-month OPT) if the foreign national has earned a degree in the area of science, technology, engineering, or mathematics (“STEM”) and the U.S. employer is enrolled in the government’s E-Verify program.

F-1 students who have an H-1B petition filed on their behalf will be automatically extended, along with any grant of OPT work authorization, until October 1, 2008, the first day of FY2009. If the H-1B petition is rejected, denied or revoked, the automatic extension of status, and work authorization, will immediately terminate. The student will have the standard 60-day grace period (starting from the date of denial or rejection of the petition) before they have to leave the United States. The interim rule allows F-1s whose OPT will expire before the start date of a petition filed under the H-1B cap to remain in the United States and work through the beginning of their H-1B employment on October 1, 2008. F-1 students who have not been granted OPT will have their lawful status automatically extended but will not be authorized to work until the H-1B petition takes effect. The automatic extension of status also applies to any F-2 dependents.

• 17-Month OPT Extension for STEM Graduates

STEM graduates who are employed by businesses enrolled in the E-Verify program will be eligible for a 17-month extension of OPT. Under current regulations, F-1 students are limited to 12 months of OPT that must be completed within 14 months of graduation. STEM graduates will be eligible for a single 17-month extension of OPT. Once the OPT extension has been granted, the student will not be entitled to another OPT extension even after the completion of another STEM degree program.

Prior to recommending the 17-month OPT extension, the graduate’s Designated School Officer (“DSO”) must certify that the student’s degree, as shown in SEVIS, is a bachelor’s, master’s, or doctorate degree with a code that is on DHS’ STEM Designated Degree Program List. The list includes: actuarial science, computer science (except data entry/microcomputer applications), engineering, engineering technologies, biological and biomedical sciences, mathematics and statistics, military technologies, physical sciences, science technologies, and medical science. The Department of Homeland Security (“DHS”) may add degrees to the STEM list and to this end will accept comments and recommendations for additional degrees that should be considered for inclusion in the list.

The STEM graduate’s employer must be registered in the government’s E-Verify program and must be in good standing in the E-Verify program in order for the OPT extension to be granted. E-Verify is a DHS program that provides employers with an automated link to federal databases to determine the employment eligibility of new hires and the validity of their Social Security numbers. Enrollment is voluntary, although some states, such as Arizona, have enacted legislation requiring certain employers to participate in the program. The STEM graduate’s OPT extension application must include the name of the employer and the employer’s E-Verify identification number.

The rule also provides for an automatic extension of employment authorization for students who submit a timely OPT 17-month extension application prior to the expiration of the initial 12-month OPT period. Work authorization will be automatically extended for up to 180 days to allow for the adjudication of the extension application.

• Additional Reporting Requirements

The graduate and the employer must agree to additional reporting requirements in connection with the 17-month OPT extension. The graduate must report to the DSO any change in legal name, residential or mailing address, employer name, employer address and loss of employment within ten (10) days of the change. The graduate must also make a validation report to the DSO every six (6) months starting from the beginning of the 17-month OPT extension period. The graduate’s employer must report the termination of the employment relationship to the graduate’s DSO within forty-eight (48) hours of the termination. The DSO must report all of the information in SEVIS. Although the OPT extension application must include the name of the graduate’s employer, the rule does not require the graduate to submit a new application for employment authorization when there is a change of employer.

• Limitation on Period of Unemployment for All Students on OPT

The new rule sets specific limits on the time during which a graduate on OPT may be unemployed in order to continue maintaining F-1 status. In the initial 12-month period of OPT available to all graduates, not more than 90 days of unemployment is permitted. STEM graduates who obtain a 17-month extension of OPT may not be unemployed for more than 120 days during the aggregate 29 months of OPT.

OPT applications will be permitted to be filed within sixty (60) days of graduation. Under current regulations, F-1 students must request OPT prior to completing their F-1 program. The new rule extends the application period to allow students to apply for OPT within sixty (60) days of graduation.

There are two parts to this interim final rule. The first part allows for automatic extension of OPT status for any F-1 student beneficiaries with pending or approved H-1B petitions. To take advantage of this automatic extension, employers do not need to be enrolled in E-Verify. The second section of the rule allows for an extension of OPT status for up to 17-months prior to expiration of the initial grant of OPT for one year. A 17-month extension of OPT status applies only to those graduates in a STEM field, and it does require employer enrollment in E-Verify.