News Release from Jewell & Associates - April 9, 2008
On April 8, 2008, the U.S. Department of Homeland Security published an Interim Final Rule, effective immediately, that provides for additional Optional Practical Training (OPT) work authorization for foreign nationals in F-1 student visa status who would otherwise be limited to twelve months of OPT. The new regulation provides two types of prolonged OPT: (1) an automatic extension of OPT to bridge the “cap gap” between an employee’s OPT expiration date and the October 1st date when an approved cap-subject H-1B petition takes effect; and (2) a seventeen-month extension, upon application, of OPT for graduates of U.S. degree programs in Science, Technology, Engineering and Mathematics (“STEM” degrees) who have jobs related to their field of study with employers who are enrolled in the government’s E-Verify program.
OPT extension to bridge the “cap gap”
This part of the new regulation provides an OPT extension and corresponding F-1 status extension (including F-2 status extensions for F-2 dependents). There is no need to apply for these benefits; they are automatic. To qualify, the F-1 student must be the beneficiary of an H-1B petition that is selected in the H-1B lottery, and is either pending or approved.
Technically, the regulation requires the employer to have marked “change of status” on the H-1B petition, but many H-1B-seekers facing a “cap gap” this year were not able to request a change of status for the very reason of the cap gap: because their OPT ends more than sixty days before October 1st, i.e., ends before August 2, 2008, they were legally ineligible for a change of status. Other H-1B seekers were not able to request a change of status of international travel occurring prior to October 1st. We expect this anomaly in the new regulation, seemingly excluding those it was intended to benefit, will be addressed by the government in the near future.
The OPT extension will be valid from the expiration of the employee’s current grant of OPT until the H-1B takes effect on October 1st. If the H-1B petition is denied or revoked, the extended OPT terminates.
Because this OPT extension is automatic, it will not be reflected on an Employment Authorization Document (EAD). The government has expanded the I-9 regulations to state that the beneficiaries of this regulatory OPT extension may work “incident to status” – meaning that they need not obtain an EAD reflecting the additional OPT. The expanded I-9 regulation is found at 8 C.F.R. § 274a.12(b)(6)(v).
This automatic OPT extension to bridge the “cap gap” is not limited to F-1s with STEM degrees, nor does it require that their employers be in the E-Verify program.
OPT extension for STEM degree-holders with E-Verify employers
This part of the new regulation aims to keep graduates with U.S. degrees in Science, Technology, Engineering and Mathematics (STEM) working in the U.S. by making it possible for them to have a total of twenty-nine months of OPT instead of only twelve months. However, the supplemental seventeen months of OPT are available only for employment with employers enrolled in the government’s E-Verify program, discussed in further detail below.
STEM degrees are degrees from the “STEM Designated Degree Program List.” The new regulation states that this list is on the Immigration & Customs Enforcement (ICE) web site at http://www.ice.gov/sevis; however, the list was not available there when the new rule was published. The list of STEM degrees may be added to ICE’s web site at a later date. In the meantime, we refer readers to the “Classification of Instructional Program” (CIP 2000) codes at http://nces.ed.gov/pubs2002/cip2000/ciplist.asp. The new regulation identifies the following fields from that list as STEM fields:
Actuarial Science. CIP Code 52.1304.
Computer Science Applications:
CIP Codes 11.xxxx (except Data Entry/Microcomputer Applications, which are CIP Codes 11.06xx)
Engineering. CIP Codes 14.xxxx.
Engineering Technologies. CIP Codes 15.xxxx.
Biological and Biomedical Sciences. CIP Codes 26.xxxx.
Mathematics and Statistics. CIP Codes 27.xxxx.
Military Technologies. CIP Codes 29.xxxx.
Physical Sciences. CIP Codes 40.xxxx.
Science Technologies. CIP Codes 41.xxxx.
Medical Scientist (MS, PhD). CIP Code 51.1401
Specifically excluded from the above codes, however, are all CIP codes ending in xx99, which are "catch-all" categories usually designated by "Other" in the CIP lists. Degrees associated with CIP codes ending in xx99 are not eligible for the seventeen-month OPT extension.
The process for a STEM graduate to get the additional seventeen months of OPT is as follows: (1) the STEM graduate must contact his/her DSO (Designated School Official, the person in charge of the school’s international student office) and follow all procedures prescribed by the school in order for the school to recommend that OPT be granted; (2) in the SEVIS database that tracks all foreign students, the DSO must record that OPT has been recommended; (3) the STEM graduate must file Form I-765 “Application for Employment Authorization” with U.S. Citizenship & Immigration Services, along with the required filing fee (currently $340), photographs, and other supporting documents. A new version of Form I-765, currently available with instructions on the USCIS web site at www.uscis.gov, has added fields for the applicant to identify the STEM field in which he/she is a graduate, and to provide evidence that the employer is enrolled in E-Verify.
If a STEM graduate applies for the supplemental seventeen months of OPT before the existing grant of OPT expires, he/she may continue working for up to 180 days past the expiration of the existing OPT while awaiting the new grant of OPT, according to the new 8 C.F.R. § 274a.12(b)(6)(iv).
The supplemental seventeen months of OPT for STEM graduates carry expanded obligations for both employer and employee. The employer’s greatest liabilities are those inherent in the E-Verify program (further details below). In addition, the employer of a STEM graduate with the supplemental seventeen months of OPT is required to notify the employee’s DSO (Designated School Official, the person in charge of the school’s international student office) within 48 hours if the employment terminates. Similarly, the employee is required to report to his/her DSO any changes in his/her or the employer’s name or address, and this must be done within ten days of the change occurring. Furthermore, the employee will be required to validate his/her and the employer’s name and address information for his/her DSO every six months. And, for the first time, employees on OPT must remain employed in order to maintain legal status; more than 90 days of unemployment within a twelve-month OPT grant, or more than 120 days of unemployment within a twenty-nine-month OPT grant, will constitute a failure to maintain legal status. (This maintenance-of-status requirement applies to all F-1s on OPT, not just to STEM graduates.)
The E-Verify program for employers to verify employee work eligibility
E-Verify, formerly known as the Basic Employment Verification Pilot Program, was created by Congress in 1996 to allow employers to electronically compare information on I-9 forms with information in the databases of the Social Security Administration (SSA) and the U.S. immigration agencies now within the Department of Homeland Security (DHS). Initially the program was available in six states, but was expanded to all fifty states in 2004. In 2007, the program was re-branded as “E-Verify.” As a voluntary program, it has not been popular with employers; fewer than 1% of U.S. employers are enrolled. Moreover, the program has been plagued with an overall error rate of about 4%, and a much higher error rate for specific populations, such as naturalized U.S. citizens. Nevertheless, E-Verify has gained attention recently as several states have mandated E-Verify for employers holding state contracts. The E-Verify program may experience a further boost from the new regulation that premises a STEM graduate’s seventeen-month OPT extension on the employer’s enrollment in E-Verify. E-Verify is voluntary and free of charge.
Before deciding whether to enroll in E-Verify, employers should read the E-Verify documents posted on the USCIS web site at www.uscis.gov/E-Verify. These include descriptions of the program, instructions for enrolling, a copy of the Memorandum of Understanding (MOU) that each enrolled employer must enter into with DHS and SSA, some FAQs, and a sixty-plus page “E-Verify User Manual.” Following are some highlights of E-Verify:
- Enrollment in E-Verify is done online, and may take a few hours. It includes entering into an MOU with SSA and DHS, and completing an online tutorial.
- The MOU lists the respective responsibilities of SSA, DHS and the employer. The MOU’s broad language includes a general requirement, without restrictions or exclusions, that the employer “make employment and E-verify related records available to [DHS and SSA], or their designated agents or designees.”
- Once an employer is enrolled in E-Verify, the employer must use E-Verify as part of its I-9 verification process for all new hires from that point forward.
- The employer is prohibited from using E-Verify to screen job candidates or to look up data on existing employees (including an existing employee who is a STEM graduate seeking the seventeen-month OPT extension). E-Verify is strictly for use with new hires.
- After an employer completes I-9 procedures with a new hire, the employer by the end of the third business day of employment must enter employee data into the E-Verify web site and print out the response. According to DHS, the response is instantaneous about 93% of the time. In the other 7% of cases, there are delays. The E-Verify MOU prescribes the strict protocols the employer must follow, depending on the type of response received. The possible responses are “confirmation” (meaning the data entered by the employer matches government records), “tentative nonconfirmation” (meaning that the employer must give the employee an opportunity to resolve the matter with DHS and/or SSA, following a specific protocol with strict time frames, but may employ the employee in the meantime), and “final nonconfirmation” (after which the employer is subject to fines if the employment continues).
- It is not clear whether enrollment in E-Verify is associated with greater, lesser, or the same likelihood of enforcement actions relating to an employer’s I-9 obligations.
- There is no deadline to register with E-Verify. Unless an employer has an employee or candidate who must make an application imminently for the seventeen-month OPT extension, a decision on enrollment may be postponed indefinitely.
- An employer is free to leave the E-Verify program at any time.
© Jewell & Associates 2008