CUNY Citizenship Now

June 12, 2008

Under a new rule released by the U.S. Department of Homeland Security on April 4, 2008, certain students on a nonimmigrant F-1 visa may now be granted an extended Optional Practical Training period (OPT). OPT allows all F-1 students to work 12 months in a job directly related to their major area of study.

F-1 students completing their OPT who desire to stay with their employer can have the employer file a petition for H-1B status on their behalf. H-1B employment is available for up to six years in three year intervals. Because more petitions are filed for H-1B visas than are available under the legal cap, USCIS holds a lottery in April to choose which petitioners can get H-1B status for their workers. This lottery provides visas only for the following October 1, creating a gap between conclusion of most students' OPT period and beginning of approved H-1B employment. Until now many students have found themselves in this bind referred to as the "cap-gap." These individuals would, in most cases, have to stay outside of the United States for a number of months and return when their H-1B status becomes effective. Note: employees of institutions of higher education or nonprofit or government research organizations are exempt from the cap.

Under the new rule, the individual's F-1 status is automatically extended if his or her H-1B petition is pending. If the petition is selected in the lottery, the graduate may remain in the United States and, if on OPT, continue working until the October 1 start date. This effectively eliminates the cap-gap. The extension automatically terminates when USCIS rejects, denies, or revokes an H-1B petition. USCIS has also taken steps to ensure that this rule change will be useful to 2007 graduates who are currently in the cap-gap. Those individuals who received H-1B visa approval for Fiscal Year 2009 and chose to apply for an immigrant visa from a consulate abroad (a process known as consular processing) are permitted to request change of status while in the United States, as the new rule has made this option available to them.

The new rule additionally permits F-1 students with a degree in a STEM field (science, technology, engineering, and mathematics) to request a 17 month extension of their OPT period. This will help employers retain their STEM employees on OPT. It also gives employers two chances for selection in the annual H-1B lottery. The student must have been granted post-graduation OPT related to the STEM degree. The employer must be enrolled in E-Verify, a system operated by U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA) that gives employers immediate access to information in order to determine employment eligibility of new hires. There are currently 70,000 students in Optical Practical Training, 23,000 of which are studying STEM degree fields. USCIS estimates that approximately 12,000 of these STEM individuals will take advantage of the extension.

Finally, the new rule allows students to apply for OPT within 60 days of graduation, rather than requiring that they apply prior to graduation, as was previously the case.

Form I-765 Application for Employment Eligibility Authorization has been revised to conform with the changes implemented by the new rule. USCIS will accept the July 30, 2007 edition of the form only through July 8, 2008.

CUNY students who want more information about the changes should contact their International Student Advisor.

USCIS has published a question and answer document <pdf> that aims to clarify further details on the rule, and many issues discussed in this story.