October 21, 2015

DHS proposes that certain F-1 STEM students be permitted to extend the OPT period by 24 months

The U.S. District Court struck down the STEM Optional Practical Training (OPT) Extension rule because according to the court, the Department of Homeland Security (DHS) failed to follow the procedures required for a new rule. The court, however, allowed the rule to remain in place through February 12, 2016 in order to give the DHS sufficient time to properly reauthorize the STEM OPT rule.

In compliance with the court's order, the DHS recently republished the STEM OPT Extension rule and sent it to the Office of Management and Budget. The proposed rule should soon be published in the federal register and stakeholders will be given at least 30 days to submit written comments. The DHS will then review and consider these comments prior to making a final decision on the proposed rule.

DHS is proposing to amend its F-1 nonimmigrant student visa regulations on OPT to allow certain F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months.

Because the rule is a “significant rule,” a minimum 60-day delay between final publication and effective date is imposed. As such, to be effective on February 12, 2016, when the court’s order invalidates the STEM OPT rule, the final replacement rule must be published no later than December 14, 2015. The new rule could conceivably be released in time to meet the court’s February 12 deadline.

May 18, 2011

Additions to STEM-Designated Degree Program List

On May 12, 2011, U.S. Immigration and Customs Enforcement (ICE) published an expanded list of science, technology, engineering, or math (STEM) degree classifications. F-1 students with STEM designated degrees are eligible for a 17 month extension of optional practical training (OPT). To be eligible for the OPT extension, the student must have received a degree included on the STEM-Designated Degree Program List. The last version of the list was published in April 2008 and the newly revised list with the additions indicated in bold print can be found at http://www.ice.gov/doclib/sevis/pdf/stem-list-2011.pdf.

February 10, 2011

H-1B “Cap Gap” for F-1 Students

The cap of 65,000 H-1B petitions for FY2011 has been reached. As a result, one must wait to apply for H-1B status under the new quota for FY2012, starting October 1, 2011. The earliest an H-1B petition can be filed for the new fiscal year is April 1, 2011, requesting an October 1st start date. For certain F-1 students, this interim period creates what is termed the “cap gap” as their status may lapse before their H-1B status can commence on October 1st. Current regulations provide relief to students by allowing an extension of F-1 status and work authorization for those students who are the beneficiaries of a pending or approved H-1B petition.

Upon the submission of a timely filed H-1B petition, the automatic cap gap extension will apply and the F-1 student will continue to maintain valid duration of status until the effective date of the H-1B approved status. Individuals under post-completion OPT at the time of filing will also receive extended work authorization through September 30th under the cap gap provisions. F-1 students with H-1B petitions that remain pending beyond October 1st are allowed to legally remain in the U.S. but their work authorization will cease. Please note that students who are within the 60 day grace period and have already completed their OPT by the April 1st filing date will also benefit from the automatic extension of their duration of status, but will not receive extension of their work authorization. For example, F-1 students whose OPT expires in February 2011 will qualify for an extension of their F-1 status while their H-1B petition is pending, but will not qualify for an extension of their work authorization as their OPT will have expired prior to April 1, 2011. However, F-1 students whose OPT is valid until July 2011 will qualify for both an extension of their F-1 status and extension of their work authorization until September 30, 2011.

For more information on filing a timely H-1B petition on April 1st and qualifying for F-1 extension of status and work authorization under the “cap gap,” please contact our offices.

November 17, 2010

Increase in International Student Enrollments in U.S.

During the 2009-2010 academic year, the number of international students in the U.S. increased by 3 percent to 690,923. The increase was largely due to a 30 percent increase in Chinese student enrollment, accounting for more than 18 percent of the total international student population. As such, China tops the list with the greatest number of foreign students in the U.S., followed by India, Korea, Canada, Taiwan, Japan, Saudi Arabia, Mexico, Vietnam and Turkey. For more details, see http://www.state.gov/r/pa/prs/ps/2010/11/150933.htm

April 27, 2010

USCIS Publishes Q&A's for OPT Cap-Gap Relief Under FY2011 H-1B Cap

The USCIS published questions and answers that address the automatic extension of F-1 student status in the U.S. (known as, "cap gap relief") for certain students with pending or approved H-1B change of status petitions (from F-1 to H-1B) under the Fiscal Year (FY) 2011 H-1B cap (i.e. petitions requesting a start date of Oct. 1, 2010). If you have questions about whether you or someone you know is eligible for this type of extension, please see the USCIS' Q&A webpage at this site: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=b56db6f2cae63110VgnVCM1000004718190aRCRD.