Relief for F-1 students affected by the "H1B Cap Gap":
A new regulation for F-1 OPT work authorization
Changes were made to the F-1 OPT regulations in April of 2008 addressing some of the most difficult work authorization issues for F-1 students caused by the H1B “Cap Gap.” The details are described below.
Automatic extension of work authorization through start of approved H1B for F-1 students on OPT in ALL fields:
The work authorization and status of F-1 students whose OPT runs out before the start of a pending H1B visa status will be extended “automatically.” This extension will cover F-1 students on OPT with jobs in ALL fields, not only the students with degrees in certain fields. If a student on F-1 OPT has a valid H1B application pending (or approved) and the OPT ends, the student is eligible for this automatic extension as long as that H1B application was filed with a “change of status” and not with “consular notification.” Check with your employer about whether they filed your H1B with a change of status. To obtain this “automatic” extension, the student will have to notify their school that they are eligible for the extension and request a new I-20 showing the extension.
F-1 students on OPT who have received a degree in the fields listed below, referred to as “STEM” fields (science, technology, engineering, or mathematics), will have an opportunity to apply for a one time 17-month extension of their regular 12 month OPT period. You will NOT apply for 29 months up front. The 17 month extension will allow students to have continuous work authorization at least through October 1st of any given following year, in case they do not get an H1B visa in their first year after graduating. Students who timely file an application for the 17-month OPT extension will be able to continue employment while the extension application is pending, until a final decision on the I-765 or for 180 days, whichever comes first.
PROCEDURES FOR THE 17 MONTH EXTENSION:
FIRST: Students graduating now with degrees in these fields will first apply for the regular 12 month period of OPT as usual.
THEN, once you are within 3 months of the end date of your first 12 months of OPT, if you meet the following criteria, you can apply through ISS office for your 17 month extension of your OPT. You will do this by filling out the OPT 17 month extension application. The USCIS will only allow you to apply for this extension once you are within 3 months of the end date of your first period of OPT.
CRITERIA FOR THE 17 MONTH EXTENSION:
- Your employer must be enrolled in the USCIS the “E-Verify” program (see information links below or click here).
- You must have graduated and be working in one of the fields listed below referred to as “STEM” fields
- You must have maintained status while on OPT
“STEM” fields (science, technology, engineering, or mathematics):
- Actuarial Science
- Computer Science Applications
- Engineering Technologies
- Biological and Biomedical Sciences
- Mathematics and Statistics
- Military Technologies
- Physical Sciences
- Science Technologies
- Medical Scientist (MS, PhD)
- Details on the STEM fields here
E-Verify is an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. E-Verify provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers. More information is available at the USCIS web page on E-Verify.
While you are on your 12 month OPT period, you will have to report to the school not only address changes but ALSO your employer name and address and any changes in employment. If you receive the 17 month extension of OPT, during that period you will also have to report the name and address of your employer, any changes in your employer AND your will have to complete our OPT report form every six months even if there has been no change in your employment.
The regulation adds a new requirement that F-1 students on OPT may not remain unemployed for more than a total of 90 days out of a 12 month OPT period, or 120 days out of a 29 month OPT period. The days of unemployment will start on the start date of your OPT card, or the day the OPT is approved (whichever is later) if you are not employed. For students whose OPT was approved before April 8, 2008, days of unemployment prior to April 8, 2008 do NOT count toward the 90 day limit. Days of unemployment after April 8, 2008 DO COUNT TOWARDS THE LIMIT.
For regular post-completion OPT, the employment does NOT have to paid employment. Therefore, you will be considered employed if you are doing unpaid research for a faculty member in your field of study or you are interning or volunteering in a position directly related to your academic field, or you are even self-employed (including performance majors with regular “gigs”). You have to be engaged in any of these have for AT LEAST 20 hours per week to count as “employment” for the purposes of OPT. If you will work in an unpaid position for a faculty member, we suggest you get a letter from that faculty member simply stating that you will be doing research for them and have them include the start and end date of that employment. You should keep that letter in a file with your other immigration documents.
The employment For the 17-month STEM extension, employment must be traditional paid employment of at least 20 hours per week.
You can read more about the definition of work in the guidance provided by the immigration service.
Can apply for OPT in 60 day grace period:
The regulation also extends the filing period of Post-completion OPT through the 60 day grace period—previously OPT applications had to be filed by the graduation date. Although it is now legal to apply during this period, we recommend that students continue to apply PRIOR to graduation.