• Foreign Students' Post-Degree Employment Authorization Extended
  • April 21, 2008 | Authors: David Z. Izakowitz; Jacquelyn E. Stone
  • Law Firms: McGuireWoods LLP - Charlottesville Office ; McGuireWoods LLP - Richmond Office
  • On April 4, 2008, the Department of Homeland Security (DHS) released an interim final rule which makes two major changes to the Optional Practical Training (OPT) program for foreign students in F-1 status. The rule extends the period of time a foreign student can work after completing his or her degree program in the following two situations:

    1. Students who are the beneficiaries of a petition seeking a change to H-1B status on October 1, the start of the new federal fiscal year, receive an automatic extension of their status and work authorization until that date or, if applicable, until the petition is denied, rejected or revoked.
    2. Students who have degrees in certain science, technology, engineering and mathematical fields may apply for a 17-month extension of their work authorization if their employers participate in E-Verify, DHS’s electronic employment verification system.

    The first of these changes addresses what is commonly referred to as the “cap gap” situation: The number of H-1Bs for any federal fiscal year is capped and employers are permitted to petition for one of the visas available under the cap no sooner than April 1, six months in advance of the fiscal year. As a result, many students’ F-1 status and work authorization expire in the current fiscal year before the students can start H-1B employment in the new fiscal year. Students in this cap-gap situation are often forced to leave the United States and return at the time their H-1B status becomes effective at the start of the new fiscal year. The new rule permits students to stay and work in the U.S. if their employer has requested a change of the student’s status effective October 1.

    The second change, according to DHS Secretary Chertoff, “will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy.” To be eligible for this 17-month work extension, an F-1 student must apply at least 90 days before his or her current post-completion OPT expires and must:

    A. Currently be participating in a 12-month period of OPT following completion of a U.S. degree.
     
    B. Have successfully completed a degree with a degree code on the STEM (Science, Technology, Engineering or Math) Designated Degree Program List which includes the following: Actuarial Science, Computer Science, Engineering, Engineering Technologies, Biological and Biomedical Sciences, Mathematics and Statistics, Military Technologies, Physical Sciences, Science Technologies, and Medical Scientist.
     
    C. Work for a U.S. employer in a job directly related to the student’s major area of study.
     
    D. Be working for, or accepted employment with, an employer enrolled in E-Verify, a Web-based system that allows employers to verify employment eligibility of new hires by comparing information taken from the I-9 form against a government database.

    Eligible students should ask the Designated School Official at their college or university to recommend the extension by endorsing a Form I-20 and making the appropriate notation in SEVIS, the system used to track foreign students. Students then file a Form I-765 employment authorization application with DHS, supported by the endorsed I-20 and a copy of the STEM degree. If approved, they will receive a new employment authorization document.

    The new rule also makes the following changes: Students are now permitted to apply for post-completion OPT up to 90 days before their academic program ends and for 60 days afterwards, instead of the former rule that did not permit post-completion application. Also, there is for the first time a limitation of unemployment while in OPT. Students in 12-month OPT may only be unemployed for an aggregate of 90 days before losing status. With a 17-month extension, the permitted unemployment period increases by 30 days.