The F-1 Student's OPT Interim Final Rule and the "Cap Gap Relief"

The F-1 Student's OPT Interim Final Rule and the "Cap Gap Relief" The U.S. Department of Homeland Security (DHS) recently issued a regulation entitled Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. This regulation was published in the Federal Register and became effective on April 8, 2008. This is an interim final rule that is open for public comments until June 8, 2009. As this rule considerably changes current procedures and eligibility criteria for Optional Practical Training (OPT), which is of considerable importance to a large number of students in F-1 status as well as many U.S. employers. The first condition is that the employer timely filed an H1B case (i.e. while the prospective employee is still in F-1 status pursuant to the grant of OPT) with a request for Change of Status. (It should be noted that the regulation does not provide for any cap gap relief to those whose employers filed H1B petitions requesting consular processing as opposed to change of status. Since the rule was published after the deadline to receive H1B petitions for this coming 2009 fiscal year, it penalizes those who decided to depart the U.S. instead of those who attempted to file a change of status.) The other two requirements are that the H1B petition indicates an October 1st start date for employment and that the student otherwise must not have violated his or her status. If all three of the above conditions are met, status and work authorization shall automatically continue until October 1st or until the H1B cap case is rejected (including not being selected in the random lottery), denied or revoked, whichever is earlier. The cap gap provision automatically extends the F-2 status of F-1 family members. The new rule has not changed the basic requirements for OPT that apply to all F-1 students. According to these rules, an F-1 student can apply for OPT to engage in practical training directly related to the student's major area of study. The student cannot start employment until an Employment Authorization Document (EAD) is issued by the USCIS. http://www.greencardfamily.com/news/news2012/news2012_0521.htm OPT can be granted either pre-completion or post-completion of the education. The pre-completion OPT rules remain unchanged, permitting OPT during annual vacation or other times when school is not in session, as long as the student remains enrolled and intends to continue with classes the next time classes begin. The student may also qualify for OPT while school is in session if OPT does not exceed 20 hours per week. http://www.greencardapply.com http://www.greencardfamily.com