Finnan, Fleischut & Associates

OPT “Extensions” and F-1 student issues

On Tuesday, April 8, 2008, USCIS published an ‘interim final rule’ in the Federal Register concerning key issues affecting F-1 students and their employers.  Set to take effect upon publication, the rule could still be subject to modification in a ‘final’ rule after the Department of Homeland Security (DHS) digests the comments that will be submitted over the next two months.  This client announcement provides an overview of the new ‘interim final rule.’

Background –

Foreign students in nonimmigrant F-1 status may apply for and receive up to twelve (12) months of Optional Practical Training (OPT), in order to work for a U.S. employer in an area related to the student’s degree program.  F-1 students remain in a period of authorized stay while completing their studies or their OPT.  Many F-1s seek to change their nonimmigrant status to H-1B for a given Fiscal Year, by having prospective employers file change of status H-1B petitions on their behalf.  The H-1B category has annual numerical limits (the “cap”), discussed in greater detail in previous client alerts.  The current demand for H-1B visas has resulted in a situation where the available allocations have been exhausted on the first day of Fiscal Year filing, with a substantial percentage of H-1Bs being rejected due to the lack of available allocations.  Often, F-1s cannot remain within the U.S. once their OPT ends, if there is a gap of more than sixty (60) days before approved H-1B status takes effect (the “cap gap”); instead, these F-1s have had to travel to their home countries to obtain necessary visas. 

The interim final rule –