New 29 Month OPT Rule Update

On April 8, 2008, Department of Homeland Security published the interim final rule concerning F-1 Optional Practical Training (OPT).  Some of the provisions apply to certain STEM (Science, Technology, Engineering, and Mathematics) degree holders, whereas the new reporting requirements apply to all students who are currently on OPT or plan to apply for OPT. 

Below is the highlight of the new rule, taken from the National Association of Foreign Student Advisors (NAFSA): Association of International Educators website.


Highlights of Key Provisions

17 months of OPT extension for certain STEM degree holders. 
The new rule makes recipients of bachelor’s, master’s, and doctoral degrees in certain STEM (science, technology, engineering, mathematics) fields eligible for a one-time 17-month extension of post-completion OPT (for a total eligibility of up to 29 months). To be eligible for the extension, the student’s employer must be registered in E-Verify, and agree to report to the OISS when the student is terminated or leaves employment. The student must agree to make periodic reports to the DSO.

New 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.

New definitions of qualified OPT employment and effect of periods of unemployment while on OPT.
Under the new rule, all post-completion OPT employment must be an average of at least 20 hours per week to qualify as employment and employment includes both paid and unpaid.  The new rule also 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.

Reporting requirements while on OPT.

        All students on 12-Month OPT are required to report to the DSO: 

  • any change of name or address
  • employer name and address
  • any interruption of such employment

        In addition, students with an approved 17-month OPT extension must report to the student's DSO within 10 days of any change of:

  • legal name
  • residential or mailing address
  • employer name
  • employer address, and/or
  • interruption or loss of employment

        AND

  • Must make a validation report to the DSO every six months starting from the date the extension begins and ending when the student's F-1 status ends, the student changes educational levels at the same school, the student transfers to another school, or the 17-month OPT extension ends, whichever is first. The validation is a confirmation that the student's name and address, employer name and address, and/or loss of employment is current and accurate.   Student must confirm the information listed above every 6 months, even if there are no changes.

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.

Duration of employment authorization.

  • Employment authorization will begin on the date requested or the date the employment authorization is adjudicated, whichever is later.
  • Exception: The employment authorization period for the 17-month OPT extension begins on the day after the expiration of the initial post-completion OPT employment authorization, and ends 17 months later, regardless of the date the actual extension is approved. 

Limited periods of unemployment to maintain status.

  • During post-completion OPT, F-1 status is dependent upon employment.
  • Students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT carried out under the initial post-completion OPT authorization.
  • Students granted a 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total 29-month OPT period.  

The Outline of the New OPT Rules provides a comparison of the new rules for 12 Month OPT, 17 Month OPT Extension and the Cap Gap Extension. 


Resources

Below is the list of web resources.