The New OPT Rule and the DSO


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Greg Siskind\'s presentation to the Tennessee Association for International Education annual meeting in Memphis, Tennessee on August 1, 2008

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The New OPT Rule and the DSO

  1. 1. The New OPT Rule and the DSO <ul><li>Greg Siskind ( [email_address] ) </li></ul><ul><li>901-682-6455 </li></ul><ul><li> </li></ul><ul><li>August 1, 2008 </li></ul>
  2. 2. E-Verify <ul><li>Formerly called the Basic Pilot Program </li></ul><ul><li>Free, Internet-based system to confirm the legal status of newly hired employees </li></ul><ul><li>Created as part of the 1996 Act </li></ul><ul><li>Compares SS# and DHS immigration databases to the employee’s name and other Form I-9 information </li></ul><ul><li>Takes 3 to 5 seconds to process </li></ul>
  3. 3. Benefits of E-Verify Participation <ul><li>Reduces significantly likelihood of being targeted for enforcement, though it is not a safe harbor </li></ul><ul><li>States may provide safe harbor under their rules (e.g. Tennessee) </li></ul><ul><li>Reduces likelihood of getting SSA no match letters (though private companies can provide this service) </li></ul><ul><li>Reduces likelihood of identity theft in some cases </li></ul>
  4. 4. Risks of E-Verify Participation <ul><li>Presumption of knowingly hiring an unauthorized worker if employment continues after final non-confirmation notice </li></ul><ul><li>Inaccuracies a big problem (Westat report – 8% false positives (though this is much improved)) </li></ul><ul><li>Must permit DHS and SSA inspections </li></ul><ul><li>If you change your mind, you have to continue using program for 30 days after giving written notice </li></ul>
  5. 5. Two Big Changes on 4/18 <ul><li>students with degrees in certain STEM fields may apply for extensions of their OPT by an additional 17 months if their employers participate in E-Verify; </li></ul><ul><li>any student on OPT seeking a change of status to H-1B status may receive an automatic extension of status and employment authorization until H-1B time starts on October 1 st or when the H-1B application is denied. </li></ul>
  6. 6. Two Smaller Changes on 4/18 <ul><li>Unemployment for 90 days can render a student on 12 month OPT out of status; 120 days for STEM OPTs </li></ul><ul><li>Students must apply for post-completion OPT up to 90 days before or 60 days afterward </li></ul>
  7. 7. The Role of the DSO <ul><li>Student must get DSO recommendation to qualify for extension </li></ul><ul><li>DSO annotates SEVIS when extension approved </li></ul><ul><li>Employers must report student’s leaving within 48 hours (employers shall consider student departed when the employer knows the student has left of the student has not shown up for 5 business days without the employer’s consent) </li></ul>
  8. 8. The Role of the DSO (cont.) <ul><li>Student seeking STEM extension must agree to report within 10 days: </li></ul><ul><ul><li>- changes to the student’s name </li></ul></ul><ul><ul><li>- the student’s residential and mailing address </li></ul></ul><ul><ul><li>- the student’s employer </li></ul></ul><ul><ul><li>- the name and address of the student’s employer </li></ul></ul><ul><li>The student must also check in with the school every six months from the date the STEM extension starts (you can set up e-reporting) </li></ul><ul><li>School must keep records of all such reports </li></ul>
  9. 9. What are the STEM professions? <ul><li>STEM stands for science, technology, engineering and math. USCIS will refer to a “STEM Designated Degree Program List” that is based on the US Department of Education’s “Classification of Instructional Programs” (CIP) 2000 report which can be found online at http :// </li></ul><ul><li>ICE may add occupations (big push for health care occupations) </li></ul><ul><li>Does not apply to minors </li></ul><ul><li>Dual majors work if one is a STEM and work is in the STEM field </li></ul>
  10. 10. How does a student request the extra 17 months of OPT? <ul><li>The student requests the extra OPT from DSO who verifies student’s degree is in STEM field and then makes recommendation to extend OPT in SEVIS </li></ul><ul><li>After DOS recommends extension in SEVIS, the DSO issues a new I-20 and the student files a Form I-765 and filing fee to USCIS </li></ul>
  11. 11. Is there still a grace period when the STEM extension is over? <ul><li>Yes. A 60 day grace period applies after the OPT employment authorization expires. </li></ul>
  12. 12. What if the work is not in a STEM field? <ul><li>What if the student has OPT to work in a field for a degree that is not a STEM profession, but the student has a previously issued degree in a STEM occupation? </li></ul><ul><li>The degree that is the basis for the student’s current period of OPT must be a bachelor’s, master’s, or doctoral degree in one of the degree programs on the current STEM Designated Degree Program List. Also, the degree that is the subject of OPT must be in STEM field. </li></ul>
  13. 13. What happens if an EAD card expires while awaiting the 17 month extension? <ul><li>The new rule automatically extends EADs for 180 days for students with pending requests for extension of post-completion OPT while USCIS adjudicates the request for extension. </li></ul>
  14. 14. Does the employer verify the OPT student in E-Verify after it signs up in order to continue employing the student? <ul><li>No. E-Verify is only used to verify new employees. An existing employee – in this case the F-1 student working on OPT – is not to be verified in E-Verified. If an employer has E-Verify in place when a student begins employment, the student would be run through the system. </li></ul>
  15. 15. What if a company is only using E-Verify at some locations but not all (including the location where the student is working)? <ul><li>The rule only states that an employer must be registered and using Everify. It does not state that E-Verify must be used company-wide and the E-Verify rules permit a company to use the system at some locations as opposed to all. However, USCIS has clarified that E-Verify must be used at the location where the student is working. </li></ul>
  16. 16. How does the “cap gap” rule work? <ul><li>The new rule extends the authorized period of stay as well as work authorization of any F-1 student who is the beneficiary of a timely-filed H-1B petition that has been granted by, or remains pending with USCIS. </li></ul><ul><li>The extension of status and work authorization terminates on October 1st of the fiscal year for which the H-1B is requested. The old rule only allowed for an extension of F-1 status, but the new rule extends both status and employment authorization. </li></ul>
  17. 17. How does the “cap gap” rule work? (cont.) <ul><li>The extension of status and work authorization terminates on October 1st of the fiscal year for which the H-1B is requested. Unlike the prior cap-gap rule, USCIS need not first issue a notice that the cap has been hit. USCIS assumes the cap is always going to be hit before October 1st so the extension will now be automatic. </li></ul><ul><li>The old rule only allowed for an extension of F-1 status, but the new rule extends both status and employment authorization. </li></ul>
  18. 18. What does the student show for I-9 purposes? <ul><li>The DSO issues a “cap gap” I-20 which is now generated by SEVIS to account for H-1B filing, selection and adjudication. </li></ul><ul><li>Student presents expired EAD, the cap gap I-20 and the USCIS H-1B receipt notice </li></ul><ul><li>Section 3 on reverification will show the expiration date of the cap gap I-20 (not later than September 20 th ). </li></ul>
  19. 19. What if the student applied for consular processing? <ul><li>USCIS will allow cases to be converted to change of status by sending a request within 30 days of the H-1B approval to a designated email address at each of the service centers. </li></ul>
  20. 20. What if post-completion OPT is completed before April 1 st and the student is in the 60 day grace period? <ul><li>The student gets an automatic extension of status if the H-1B is timely filed, but the employment authorization would not be extended. </li></ul>
  21. 21. What if the student finds the H-1B application was denied? <ul><li>The automatic extension of F-1 status and employment authorization immediately terminates upon the rejection, denial, or revocation of the H-1B petition. </li></ul><ul><li>The student will, however, be eligible for the 60 day F-1 grace period from the date of the denial of the H-1B. </li></ul>
  22. 22. Does the “cap-gap” rule apply to STEM professionals only? <ul><li>No. Only the 17 month extension provision of the new rule applies to STEM professionals. Any OPT holder can qualify for the cap-gap extension provision. </li></ul>
  23. 23. May students travel during the cap gap extension period and return in F-1 status? <ul><li>“ The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired EAD issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. By definition, however, the EAD of an F-1 student covered under a cap gap extension is necessarily expired. As a result, if the student elects to travel outside the United States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning. Because the H-1B petition is for an October 1 start date, the student should be prepared to adjust his/her travel plans, accordingly.” </li></ul>
  24. 24. Are F-2 students extended as well under the “cap-gap” rule? <ul><li>Yes. F-2s are automatically extended as long as the F-1’s status is. </li></ul>
  25. 25. What change does the new rule make with respect to the timing of filing an initial OPT application? <ul><li>Prior to this rule being issued, students must have applied for post-completion OPT prior to completing their coursework. The new rule allows students to apply for post-completion OPT up to 90 days before program end date and for 60 days afterwards. </li></ul>
  26. 26. What does the rule change with respect to the unemployment of OPT students? <ul><li>The rule imposes for the first time a limit on unemployment. Students on 12 month OPT may only have an aggregate maximum period of unemployment of 90 days. That period increases by 30 days for F-1 students in the 17 month extension period. The 90 day rule applies during the cap gap extension period. </li></ul>
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