Approximately 26,000 F-1 students may benefit from a new interim rule that took effect on April 8, 2008 extending their allowable employment period from 12 to 29 months.  Additionally, an estimated 10,000 students petitioned for H-1B non-immigrant work visas will get an automatic “cap gap” extension.       

Prior Rule

Prior to this rule, F-1 students were authorized to work in the U.S. for a limited period of 12 months after having been enrolled in their academic program for one full academic year under the Optional Practical Training (OPT) program.  The authorized training had to be directly related to the student’s course of study. 

F-1 students were allowed to work before graduation (pre-completion OPT) or after completion of the study (post-completion OPT).  The total allowable work period cumulatively included both the pre-completion and the post-completion OPT.  This period was non-extendible. 

After post-completion OPT, F-1 students were given a 60-day grace period to depart the U.S. or to renew their F-1 by enrolling in a new degree program or changing to another visa category in order to maintain legal status in the U.S.      

Requirements Under New Rule

Under this new interim rule, students will qualify for the additional 17 months of OPT time if they meet certain requirements. 

First, he/she must be currently engaged in the 12-month period of approved post-completion OPT.  

Second, the F-1 student’s degree must be in the fields of science, technology, engineering or mathematics (STEM).

Third, the student must be employed in a business enrolled in the E-verify program.  E-Verify is a free and voluntary internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees and the validity of their Social Security Numbers. 

Lastly, the student must be maintaining F-1 status, which means that he/she has not violated any conditions of the F-1 by engaging in unauthorized employment or not reporting to school or taking less than the required credits without permission or without having been reinstated into status. 

How to Apply

The student needs to file Form I-765, Application for Employment Authorization Document (EAD) with the United States Citizenship and Immigration Services (USCIS) along with Form I-20 endorsed by the Designated School Official, a copy of the STEM degree and filing fee of $380.00.    

F-1 students who timely file their STEM extension applications with the USCIS may continue working while their applications are pending.

Work Pending H-1B Petition

F-1 students may change to H-1B status.   Under the previous regulation, the

F-1 student with pending H-1B petition was authorized to stay in the U.S. beyond the 60-day grace period but was not authorized to work.          

The new rule automatically extends both the student’s period of stay and work authorizations while the H-1B petition is pending. 

Welcome News

This new interim rule extending the OPT period is welcome news to F-1 students, particularly in the STEM field, who are usually pressed for time after completion of studies to look for jobs in their particular fields.  It also allows them more time to gain more skills and experience in on-the-job settings.

The extended OPT time also enables employers to hire highly skilled foreign workers and gives them time to test and oversee their work prior to deciding whether they would want to sponsor them for an H-1B non-immigrant worker visa.  

This development is aimed at keeping the U.S. competitive in the world market.  According to Homeland Security Secretary Michael Chertoff, “This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy.”  

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Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com