The government has released a proposed new rule which we hope will resolve the present uncertainty for the F-1 Optional Practical Training (OPT) program.
International students studying in the U.S. pursuant to F-1 status are generally eligible to apply for pre- or post-degree completion OPT with a U.S. employer of up to 12 months duration in a field related to their U.S. degree. The OPT program is of great benefit to international students, as it allows them to gain valuable work experience with a U.S. employer. There may also be a reciprocal benefit to the U.S. economy in retaining and benefiting from the knowledge of these students far beyond their graduation.
However, the current employment immigration landscape is no smooth sailing. The most widely used employment-based immigration category, H-1B, is subject to an annual cap that, for many years outside the recent recession, has been exhausted or even exceeded almost as quickly as the April 1 filing window opened.
In 2008, recognizing these shortcomings, the U.S. Department of Homeland Security promulgated an interim rule that provided:
1. That if the international student’s U.S degree is in a Science, Technology, Engineering, or Mathematics (STEM) field, and their U.S. employer is enrolled in the government’s e-verify program, that student may be eligible for a 17-month extension of their OPT program; and
2. That an international student whose U.S employer files an H-1B visa on their behalf may be eligible to automatically bridge the gap between the end of their F-1 OPT period and the commencement of their H-1B status with that employer (known as the “cap gap”).
In August of this year, however, the U.S. District Court for the District of Colombia vacated Homeland Security’s 2008 interim rule on procedural grounds, creating great anxiety around the future of these OPT program benefits. This order was stayed until February 12, 2016. In October, Homeland Security then issued a proposed rule to, amongst other things:
1. Increase the STEM extension period from 17 months to 24 months;
2. Improve oversight of STEM extensions by:
a. adding requirements that U.S. employers establish and implement formal mentoring and training programs,
b. adding wage and other protections for STEM OPT students and U.S. workers, and
c. allowing extensions only to students with degrees from accredited schools; and
3. Providing “cap gap” relief for F-1 students with timely filed H-1B visa applications.
The period in which to comment on the proposed rule ends on November 18, 2015. Go to the following link to review the proposed rule in more details and to submit comment: https://federalregister.gov/a/2015-26395.
There is no guarantee that this rule will take effect as presently prescribed, or become law at all, but it is certainly hoped that the present uncertainty will be resolved before the new H-1B application filing window opens on April 1, 2016. Dayzad Law will continue to closely monitor developments as it effects many employers and employees.