OREGON STATE UNIVERSITY

New OPT Rule - April 8, 2008

The new immigration rule published on April 8, 2008, implements several important changes that affect OPT benefits and authorizations.

Please note: The April 8th rule is an interim final rule, which means that it is effective as of 4/8/08, but may change based on comments that were submitted by June 9, 2008. While we do not expect many changes, any of the information in this rule is subject to change. For the moment, however, this is the current information as provided by the Student Exchange Visitor Program (SEVP) and the Department of Homeland Security (DHS).

17 Month Extension of OPT

Students whose completed programs in STEM (Science, Technology,
Engineering, Mathematics) fields may be eligible to apply for a one-time 17 month extension of their OPT benefit. Your employer must also be registered with EVerify in order to be eligible to apply for an extension.

To learn more, click here.

New I-765 form

A new I-765 form has been issued to apply for OPT. The new form is available on the USCIS website. The previous form (edition date 7/30/07) will no longer be accepted. The form and instructions have been changed to implement the new OPT regulations.

OPT filing deadlines

The rule sets new deadlines for filing Form I-765 for post-completion OPT. An I-765 for standard post-completion OPT can be filed up to 90 days before the program end-date and up to 60 days after the program end-date, provided that it is filed within 30 days of the date the DSO enters the OPT recommendation into SEVIS. Applications for the 17-month STEM extension must be filed before the current EAD expires.

H-1B cap-gap extension of D/S and work authorization until October 1

Duration of status and work authorization will be automatically extended for a student on OPT, who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1 of the following fiscal year. This would apply to all qualified students on OPT, not just STEM students. The extension of duration of status and work authorization would automatically terminate upon the rejection, denial, or revocation of the H-1B petition filed on the student's behalf.

Effect of periods of unemployment while on OPT

The new rule states that “during post-completion OPT, F-1 status is dependent upon employment. During any initial 12-month period of post-completion OPT, no student (including STEM students) may be unemployed for an aggregate of more than 90 days. If a STEM student receives a 17-month extension, the limit on unemployment is raised to an aggregate of no more than 120 days, applied to the entire 29-month period on which the student is on post-completion OPT.

SEVP has not yet provided guidance on what action, if any, will be taken with students who have reached their unemployment limit. However, since the new OPT rule states that F-1 status is dependent on employment during OPT, students who have not secured employment by the end of their unemployment limit should be prepared to depart the country.

Grandfathering

F-1 students currently in the United States, including students currently on OPT, will also be able to take advantage of the rule's new provisions, and are bound by its limits.