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Department of Homeland Security Publishes Interim Final Rule Extending OPT Period, and Expand the Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions

New Rule Extends the Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM (Science, Technology, Engineering or Mathematics) Degrees, and Expands the Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions.

A student may apply to USCIS for authorization for temporary employment for optional practical training directly related to the student's major area of study. The student may not begin optional practical training until the date indicated on his or her employment authorization document, Form I-766. A student may be granted authorization to engage in temporary employment for optional practical training:

(1) During the student's annual vacation and at other times when school is not in session, if the student is currently enrolled, and is eligible for registration and intends to register for the next term or session;

(2) While school is in session, provided that practical training does not exceed 20 hours a week while school is in session; or

(3) After completion of the course of study, or, for a student in a bachelor's, master's, or doctoral degree program, after completion of all course requirements for the degree (excluding thesis or equivalent). Continued enrollment, for the school's administrative purposes, after all requirements for the degree have been met does not preclude eligibility for optional practical training. A student must complete all practical training within a 14-month period following the completion of study, except that a 17-month extension  does not need to be completed within such 14-month period.

A new Interim Rule effective today will change OPT limits and allow for a “Cap Gap.” In short, this new rule addresses three major areas:

Extends an F1 student’s OPT minimum period from 12 months to 29 months (an addition 17 months) for F-1 students who have completed science, technology, engineering or mathematics programs (STEM) AND accepts employment with employers enrolled in the USCIS e-Verify employment verification program. Students must be in a SEVP designated school, under a STEM program and the employer must participate in the E-Verify program. On a positive note, this is an excellent benefit for both the student and the employer. If an employer currently has a student working for them on OPT and filed an H1B that is not chosen through the lottery, this is another avenue to keep them employed until next years cap. However, this extension comes with many requirements and action items, so there are many hoops that both the student and employer must go through to get this extension. If you are interested in this please contact me via email and I will send you more detailed information.

The rule will also extend the “authorized period of stay” for all F-1 students who have filed an H1B applications with a 10/1 start date as a change of status request. This allows an automatic extension of status AND employment authorization for F-1 students with pending H1B applications until 10/1 or until the denial/rejection of the H1B application. If the H1B is ultimately denied the student has 60 days from the date of denial to leave the US. This applies to ALL F-1 students and not just students in STEM. The cap gap is only beneficial to H1B applications that are accepted. For those that are not accepted, they may be able to do the extension described above.

The rule specifies an aggregate maximum period of unemployment during OPT of 90 days for students in a 12-month OPT and 120 days for students who have an approved 17-month extension period. Therefore, in order for an F-1 student to maintain his/her status, they cannot be unemployed for more than 90 or 120 days during the authorized OPT period.