4/9/08—ANALYSIS & COMMENTARY ON THE OPT EXTENSION RULE
by Charlotte A. Danielsson,
Attorney at Law (JD Stanford Law; BA UC Berkeley)
The rule extending OPT time was officially published in the Federal Register on 4/8/08 and, thus, has now become law and is effective immediately. This rule deals with two different types of OPT extensions: (1) extension of OPT time for individuals with pending H1b applications; and (2) 17 month extension of OPT time for graduates in science, technology, engineering, or mathematics (STEM) who accept employment with employers enrolled in the USCIS’ E-Verify program. The rules and requirements under both of these extensions are very different:
EXTENSION OF OPT TIME THROUGH 10/1 FOR INDIVIDUALS WITH PENDING H1B APPLICATIONS
Under prior law, the CIS already had authorization to extend the status of F1/OPT holders until the October 1st H1b start date (although notably they have chosen not to exercise this power in the last few years!). The extension available upon exercise of this power by the CIS, however, only extended status but did not extend work authorization. The extension that is now available under the new regulation just published, extends not only status but also work authorization through 10/1. This extension is automatic and no separate application is required.
This regulation will work as anticipated by the CIS in subsequent years, however, there is a fatal flaw in the drafting as it pertains to this year’s H1b filings. As drafted, to be eligible for the automatic extension, the H1b application has to have been filed as an H1b change of status case. When filing an H1b petition, the form allows you to choose whether you want consular processing or a change of status with the USCIS. A change of status with the USCIS requires that you submit evidence that you have lawful status through the requested start date of 10/1/08. Most applicants who filed H1b applications under the 2009FY quota whose OPT grace period ends prior to 10/1/08, did not file their H1b applications with a change of status request because they were not eligible. Consequently, they are not eligible now for the new automatic extension. Currently, the only way to rectify this situation is through an amendment (and, the H1b cannot be amended until it is approved). Thus, the only people who will benefit from this extension are those whose OPT grace period already reached through 10/1 and now their work authorization has been extended to match, and those who filed their H1b applications incorrectly as a change of status application when they were not eligible. This issue has been raised with the USCIS by the American Immigration Lawyers Association and the USCIS is looking into the matter and has promised to address it. We will provide any updates on the situation as soon as it is available.
ADDITIONAL 17 MONTH EXTENSION OF OPT TIME FOR STEM (SCIENCE, TECHNOLOGY, ENGINEERING, & MATH) GRADUATES
The 17 month extension of OPT time is available (regardless of whether there is an H1b filing) to any F1/OPT who has completed a bachelor’s, master’s, or doctorate degree with a degree code that is on the current STEM Designated Degree Program List (the degree that is the basis of the current OPT is the one at issue for qualification for the extension) whose employer or prospective employer is enrolled in the USCIS’ E-Verify employment verification program at the time the student applies for the 17-month extension. A student wishing to file for this extension must contact their DSO & have their DSO recommend the 17 month extension through SEVIS. After that, the student must submit the EAD application (Form I-765) to the USCIS and include a copy of their degree and the employer’s E-verify company identification number on the application.
Note, per the regulation, the approved list of majors (STEM) is available on SEVP’s website at www.ice.gov/sevis. As of the date of this posting, however, the list was not yet on the website---but presumably it will be posted within the next week or so.
