By: Allen E. Kaye

New Rule
The Department of Homeland Security announced on April 4, 2008 a new regulation which does this:

IF you are an F-1 student whose currently valid EAD for Optional Practical Training expires before October 1st, and there is a properly filed approved or pending petition to change your status to H-1b beginning next October 1st, then,
Your EAD and your F-1 student status are automatically extended until October 1st, (unless the H-1b petition filed on your behalf is denied.)

If you are an F-1 student with a degree in science, technology, engineering or mathematics ("STEM"), and you have an EAD and are working in your field for an employer enrolled in the Department of Homeland Security’s SAVE Program, then with the endorsement of you DSO,

- you may file an application to extend your employment authorization for an additional 17 months (29 months total).
- your EAD will be automatically extended up to 180 days while your application is pending
- your employer will be required to report termination of your employment to your DSO
- your DSO will report the details of your employment, and the maintenance of your status through SEVIS

If you are an F-1 student completing an academic program,
you may now apply for Optional Practical Training up to 60 days after completion of your academic program. (You may still chose to apply up to 90 days prior to completion of the program.)
IMPLEMENTATION

A new H-1b petition may be filed six months in advance of the start date. The government’s "year" begins on October 1st. Due to the annual "cap" on H-1bs, on April 1st, employers file for new H-1bs to begin working no earlier than October 1st. If a student’s status or employment authorization ends between the time an application is filed and October 1st, then there will be a "gap" in their work authorization, or in their status.

The new regulation provides an automatic extension for F-1 students working on Optional Practical Training on whose behalf an H-1b petition an application has been filed which requested a start date of October 1st. The student’s authorized stay and their employment authorization are extended until either October 1st, or until the H-1b petition is denied - whichever comes first.
This extension is automatic for qualified students. No additional application is required.

17 Month EAD Extension
This regulation was published to "address the immediate competitive disadvantage faced by U.S. high tech industries" in obtaining and retaining certain highly skilled workers.

An F-1 student completing their academic program, may apply for "OPT" ("optional practical training") for up to one year to gain experience in their field. The application is made based on an endorsement by the DSO, and employment is authorized once the USCIS approves the application and issues an "EAD" ("employment authorization document").

Certain students may be eligible to apply to extend the EAD for an additional 17 months.
The requirements relate to:

Degree Requirements for 17 month extension
To be eligible for the 17 month extension, a student’s degree must be in one of the following areas:

The classification of the degree is based on the degree program - not merely the degree title. The Classification of Instructional Programs developed by the U.S. Department of Education National Center for Education Statistics it utilized to determine degree classification.

Employer Requirements
To be eligible for the 17 month extension, the student must be working for an employer enrolled in the E-Verify program. Only one percent of employers are currently enrolled in E-Verify. Participating in E-Verify requires an application by the company, and agreement to a "Memorandum of Understanding." It involves an ongoing commitment to utilize E-Verify to verify the status of EVERY new employee - not just F-1 students.

Most employers are not currently enrolled in E-Verify. There are costs and burdens as well as benefits to this program beyond those related to OPT extensions. Whether to enroll in E-Verify will be a business decision for each employer and will be driven by many factors.
If a student applies for a 17 month extension, the employer must agree to notify the student’s DSO within 48 hours should the student’s employment end.

DSO role
To be eligible for the 17 month extension, a student must request that their DSO recommend the extension. The DSO will verify the student’s eligibility, certify that the student’s degree is on the STEM Designated Degree Program List, and assure that the student and employer are aware of their responsibilities for maintaining status.

The recommendation by the DSO is made through the online SEVIS database. It requires an interface which as of this writing, is not available.
The student is required to report to the DSO every six months to verify continued eligibility. The employer is required to report any termination in employment. The DSO will enter these reports into SEVIS.

The student must also report to the DSO within 10 days, any change of name, mailing or residential address, employer name and address, and interruption or loss of employment. The DSO will update SEVIS with this information.

Type of Job
The employment must be in the area of the student's education (i.e. STEM). Students with OPT are now expected to be employed to maintain status. Students may not have more than 90 days cumulative of unemployment during post-completion OPT. If they have been granted a 17 month extension, the cumulative time unemployed may not exceed 120 days.

Open Questions
This analysis has been prepared immediately upon publication of the Interim Final Rule. There has been no guidance or interpretation from the USCIS beyond a press release, and the discussion contained in the rule itself.

Many questions remain open, and we expect these will be clarified in the near future:

This was prepared as general information for clients of the Law Offices of Jay I. Solomon. For specific legal advice, please consult your attorney. Thanks to Jay Solomon for allowing us to publish this information.

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