Office of Communications
Questions & Answers #2
May 23, 2008
EXTENSION OF OPTIONAL TRAINING PROGRAM FOR QUALIFIED STUDENTS
Rule Expands ‘Cap-Gap’ Relief for Students with Pending H-1B Petitions
The U.S. Department of Homeland Security released an interim final rule
on April 4, 2008, extending the period of Optional Practical Training
(OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The
extension is available to F-1 students with a degree in science, technology,
engineering, or mathematics (STEM) who are employed by businesses enrolled
in the E-Verify program.
The rule also addresses situations in which an F-1 student’s status
and work authorization expires before he or she can begin employment under
the H-1B visa program. The interim final rule addresses this by automatically
extending the period of stay and work authorization for all F-1 students
with pending H-1B petitions. The rule will also implement certain programmatic
changes, including allowing students to apply for OPT within 60 days of
U.S. Citizenship and Immigration Services published an initial set of questions
and answers related to the rule on April 4; below are a supplemental group
of questions and answers that will provide essential guidance and more
specific details on the program.
Supplemental Qs and As
Cap Gap Provision
On April 18, 2008, USCIS announced an e-mail notification process allowing
a petitioner whose pending H-1B petition on behalf of an F-1 student was
randomly selected to receive an H-1B visa number for FY 09 to request
change of status in lieu of consular processing, as originally indicated
on the petition. Since some FY09 H-1B petitions for these students may
have already been approved for consular processing when USCIS published
this e-mail notification process, can the petitioner still request change
· Yes. The petitioner should send an e-mail to the USCIS service
center that issued the approval, using the designated e-mail address.
Such requests must include the H-1B receipt number, as well as the petitioner’s
and the beneficiary’s name.
· If the H-1B petition and change of status application are pending,
the change of status request should be submitted to the center within
30 days of the receipt notice. In addition to including the receipt number
and the name of the petitioner and beneficiary, the request should also
include the beneficiary’s date of birth, I-94 (Arrival/Departure
Record) number, and Student and Exchange Visitor Information System (SEVIS) number.
· Please note that separate e-mail addresses have been established
for Premium and Non-Premium Processing Cases. These e-mail addresses are
Vermont Service Center
Premium Processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
Non-Premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov
California Service Center
Premium Processing cases: CSC.email@example.com
What does “timely filed” mean? Does this include a petition
submitted to USCIS on April 1, but not yet selected under the random selection
process for an H-1B visa number?
· “Timely filed” means that the H-1B petition was filed
during the H-1B acceptance period, while the student's authorized
duration of status (D/S) admission was still in effect. The interim final
rule states that the D/S admission includes the academic course of study,
any authorized periods of postcompletion OPT, and the 60-day departure
preparation period, commonly known as the “grace period.”
· The interim final rule further states that once a timely filing
has been made, the automatic cap gap extension will continue until September
30, if the petition is selected and approved, unless it is subsequently
rejected, denied, or revoked. Students are strongly encouraged to stay
in close communication with their employer during the cap gap extension.
A Form I-797, Notice of Action, with a valid receipt number, is evidence
that the petition was filed and accepted.
What if the post-completion OPT expired before April 1? It appears that
F-1 status would be extended, but would OPT also be extended?
· A student who completed his or her post-completion OPT and who
subsequently was in a valid grace period on April 1, would benefit from
an automatic extension of his or her D/S admission, if the H-1B petition
was filed during the H-1B acceptance period, which began on April 1. The
employment authorization, however, would not be extended automatically,
because it already expired and the cap gap does not serve to reinstate
or retroactively grant employment authorization.
Is a student who becomes eligible for an automatic extension of status
and employment authorization, but whose H-1B petition is subsequently
rejected, denied or revoked, still allowed the 60-day grace period?
· The applicability of the 60-day grace period following rejection,
denial or revocation of an H-1B petition is discussed in the Supplemental
Section of the interim final rule. If USCIS denies, rejects, or revokes
an H-1B petition filed on behalf of an F-1 student covered by the automatic
cap gap extension, the student will have the standard 60-day grace period
(from notification of the denial, rejection, or revocation of the petition)
before he or she is required to depart the United States. 73 FR 18944,
18949 (April 8, 2008).
· For denied cases, it should be noted that the 60-day grace period
does not apply to an F-1 student whose accompanying change of status request
is denied due to discovery of a status violation. Such a student in any
event is not eligible for the automatic cap gap extension. Similarly,
the 60-day grace period would not apply to the case of a student whose
petition was revoked based on a finding of fraud or misrepresentation
discovered following approval. In both of these instances, the student
would be required to leave the United States immediately.
May students travel outside the United States during a cap gap extension
period and return in F-1 status?
· The regulations at 8 CFR 214.2(f)(13) state that a student who
has an unexpired EAD issued for postcompletion OPT and who is otherwise
admissible may return to the United States to resume employment after
a temporary absence. By definition, however, the EAD of an F-1 student
covered under a cap gap extension is necessarily expired. As a result,
if the student elects to travel outside the United States during a cap
gap extension, he/she should be prepared to apply for an H-1B visa at
a consular post abroad prior to returning. Because the H-1B petition is
for an October 1 start date, the student should be prepared to adjust
his/her travel plans, accordingly.
Do the limits on unemployment time apply to students with a cap gap extension?
· Yes. The 90-day limitation on unemployment during the initial
post-completion OPT authorization continues during the cap gap extension.
If a student was not in an authorized period of OPT on the eligibility
date, can the student work during the cap gap extension?
· No. In order for a student to have employment authorization during
the cap gap extension, the student must be in an approved period of post-completion
OPT on the eligibility date.
May a student eligible for a cap-gap extension of status and employment
authorization apply for a STEM OPT extension while he or she is in the
cap-gap extension period?
· Yes. However, such application may not be made once the cap-gap
extension period is terminated (e.g., rejection, denial, or revocation
of the H-1B petition), and the student enters the 60-day departure preparation period.
Would a student with an undergraduate STEM degree but a master’s
degree in a non-STEM field be eligible for an extension of OPT based on
the master’s degree?
· The interim final rule states that the “[t]he degree that
was the basis for the student’s current period of OPT is a bachelor’s,
master’s or doctoral degree in one of the degree programs on the
current STEM Designated Degree Program List, published on the SEVP website
at http://www.ice.gov/sevis." This provision is found at 8 CFR 214.2(f)(10)(ii)(C)(2).
· Under the interim final rule at 8 CFR 214.2(f)(10)(ii)(C)(2),
a student who received an undergraduate STEM degree, but whose graduate
degree is in a non-STEM field and whose current post-completion OPT is
based on that graduate degree, would not be eligible for the 17-month
Would a student in post-completion OPT based on a non-STEM master’s
degree be eligible for an OPT extension if the job offered to the student
directly relates to the student's undergraduate STEM degree and the
non-STEM master's degree?
· The student would not be eligible for an extension of OPT in such
circumstances. The degree that was the basis of the current period of
OPT must be a STEM degree.
Will ICE be adding new degrees to the STEM Designated Degree Program List
during the comment period?
· New degrees will not be added to the list during the comment period.
DHS, however, will consider all comments received regarding the possible
inclusion of additional degrees and will be consulting with other interested
government agencies regarding such possible additions. As stated in the
interim final rule, however, the Department must also continue to ensure
that the OPT extension remains limited to students with degrees in major
areas of study falling within a technical field where there is a shortage
of qualified, highly-skilled U.S. workers and that is essential to this
country’s technological innovative competitiveness.
Can a student with a dual major qualify for the STEM OPT extension based
on one of the degree programs?
· If a student has a dual major, and one of the degrees is on the
STEM Designated Degree Program List, and the job is directly related to
the student’s STEM degree, the student would be eligible to apply
for the STEM OPT extension.
Can a student qualify for the STEM OPT extension based on the student’s minor?
Timing and Reporting
By what means must a student report a change in the student’s circumstances
to the DSO?
· Students pursuing STEM extension OPT must report to their DSO,
within 10 days, loss of employment or change to any of the following:
o The student’s legal name
o The student’s residential or mailing address
o The student’s email address
o Employer name
o Employer address
· Additionally, these students must send a validation report to
their DSO every six months starting from the date the STEM extension OPT
starts and ending when the student’s F-1 status ends or the STEM
extension OPT ends, whichever is first. The validation report must include
o Full legal name
o SEVIS identification number (if requested by the school)
o Current mailing and residential address
o Name and address of the current employer
o Employment start date for the current employer
· Students should consult with their DSO as to the preferred method
of reporting changes. SEVP recommends using e-mail as it provides both
evidence of reporting and the date reported. Some schools may provide
other electronic means (such as a web page) to accept reports from students.
· Students should keep a record of all reports made to the DSO and
the method by which the report is made.
By what means must an employer report a student’s termination of
employment to the student’s school? Must an employer’s report be
received by the school within 48 hours of a student’s termination?
· The school may provide the student with instructions on how to
report the end of the student’s employment. The student must provide
this information to the employer. If the school does not provide such
instructions, the employer may send the report to the school address listed
on the student’s Form I-20.
· The employer should provide the student’s name, SEVIS ID
number (if available), and the date the student’s employment ended.
· The employer has complied with the reporting requirement on the
day the report is timely sent (i.e., sent within 48 hours of a student’s
termination). The school does not have to
receive the employer’s report within 48 hours of the student’s termination
for the employer to be in compliance with the requirement.
I-9 Employer Verification Compliance
What document can an F-1 student applying for a 17-month STEM extension
show his or her employer when completing the Form I-9?
· According to the employment authorization regulations at 8 CFR
274a.12(b)(6)(iv), which were part of the April 8 interim final rule,
an F-1 student who has timely filed an application on Form I-765 for a
17-month STEM extension of his or her post completion OPT, and whose employment
authorization document (Form I-766) has expired, is authorized to continue
working while that application is pending, for a period not to exceed 180 days.
· The expired Form I-766 EAD (issued under category (c)(3)(i)(B)),
the USCIS receipt notice showing a timely filing of the STEM extension
application (Form I-797, Notice of Action), combined with an I-20 updated
to show that the DSO recommended the STEM extension for a work authorization
period beginning on the date after the expiration of the EAD is the equivalent
of an unexpired Employment Authorization Document under List A, #4 of
the Form I-9. This combination of documents satisfies the Form I-9 requirements
for 180 days (or less if the application is denied beforehand). If the
17-month STEM extension is approved, the student should receive a new
Form I- 766 EAD reflecting the 17-month STEM extension within the 180-day period.
What documents can an F-1 student with automatic employment authorization
under the cap-gap provision show his or her employer when completing the Form I-9?
· The DSO will issue a “cap gap” I-20 which will show
on page 3 that the student’s employment authorization has been extended
and the effective dates. The student may need to provide the DSO with
evidence of a timely filed H-1B petition during the H-1B acceptance period
if the student’s record has not been updated via an interface with USCIS.
· The expired Form I-766 EAD (issued under category (c)(3)(i)(B)
or (c)(3)(i)(C)) combined with a “cap gap” Form I-20, endorsed
to show that the student’s employment authorization is still valid,
and the USCIS receipt notice (Form I-797, Notice of Action), showing receipt
of the H-1B petition are the equivalent of an unexpired Employment Authorization
Document under List A, #4 of the Form I-9. This combination of documents
satisfies the Form I-9 document presentation requirements until September
30, or on the date of rejection, denial, or revocation of the petition.
If the receipt notice has not yet been issued, the expired EAD and cap
gap Form I-20 are sufficient. This combination of documents satisfies
the Form I-9 until the expiration date noted on the cap gap Form I-20,
but not later than September 30. If the student presents a “cap
gap” Form I-20 without a receipt notice, the employer must re-verify
upon the expiration date noted on the Form I-20. The student may present
another cap gap Form I-20 indicating continued employment authorization
to satisfy the reverification requirement.
How is the cap gap Form I-20 endorsed to indicate employment authorization?
· SEVIS will generate a cap gap Form I-20 that takes into account
the different stages of the H-1B filing, selection, and adjudication process.
The cap gap Form I-20 will contain the following endorsement:
“F-1 status and employment authorization for this student have been
automatically extended to [the applicable date will be inserted, as noted
below]. The student is authorized to remain in the United States and continue
employment with an expired employment authorization document. This is
pursuant to 8 CFR 214.2(f)(5)(iv) and 8 CFR 274a.12(b)(6)(iv), as updated
April 8, 2008 in a rule published in the Federal Register (73 FR 18944).
Additional information about the automatic extension can be found on the
Student and Exchange Visitor Program Web site at
· The DSO will note an expiration date on the cap gap Form I-20
o If the student’s post-completion OPT EAD expires before June 2
and the student can only show the DSO evidence of a properly filed H-1B
petition that also includes a change of status request, then the DSO will
note an expiration date of June 2 and August 2, respectively.
o If the student’s post-completion OPT EAD expires before July 28
and the student can show the DSO evidence of being on the wait list for
an H-1B slot, the DSO will note an expiration date of July 28 and September
o If the student can show the DSO a filing receipt (Form I-797, Notice
of Action), or approved the H-1B petition and change of status request,
the DSO will note an expiration date of October 1.
Limits on Periods of Unemployment
What are the limits on periods of unemployment?
· Students on post-completion OPT may have up to 90 days of unemployment.
· Students who have OPT extended due to the cap gap provisions continue
to be subject to the 90-day limitation on unemployment.
· Students who receive a 17-month STEM OPT extension are given an
additional 30 days of unemployment for a total of 120 days over their
entire post-completion OPT period.
Do the limits on unemployment apply to any periods of unemployment prior
to April 8, 2008?
· No, the limits on unemployment do not apply retroactively.
Do the limits apply to students who had post-completion OPT approved before
April 8, 2008?
· For students who started post-completion OPT prior to April 8,
2008, unemployment time will accrue only for time spent unemployed after
April 8, 2008. Time unemployed prior to April 8, 2008, will not be counted.
Is a student who splits OPT between two degrees at the same level limited
to a total of 90 days of unemployment?
· No, the student is not limited to a total of 90 days of unemployment
in this case. For each new period of post-completion OPT, the student
will have the full 90-day period of unemployment.
What counts as time unemployed?
· Each day during the period when OPT authorization begins and ends
that the student does not have qualifying employment counts as a day of
unemployment. The only exception is that periods of up to 10 days between
the end of one job and the beginning of the next job will not be included
in the calculation for time spent unemployed.
How does travel outside the United States impact the period of unemployment?
· If the student whose approved period of OPT has started travels
outside of the United States while unemployed, the time spent outside
the United States will count as unemployment against the 90/120- day limits.
· If a student travels while employed (either during a period of
leave authorized by an employer or as part of their employment), the time
spent outside the United States will not count as unemployment.
What types of employment are allowed for students during an OPT STEM extension?
· Students granted an OPT STEM extension must work at least 20 hours
per week for an E-Verify enrolled employer in a position directly related
to the student’s STEM degree.
· STEM students may work multiple jobs related to their STEM degree,
but all the employers must be enrolled in E-Verify.
· Students on an OPT STEM extension are allowed to volunteer, incidental
to their status. This means that volunteer work is allowed but does not
count as employment for the purpose of maintaining F-1 status.
How do students show employment is directly related to their degree program?
· SEVP recommends that students maintain evidence that they held
a particular position, proof of the duration of that position, the job
title, contact information for the student’s supervisor or manager,
and a description of the work.
· If it is not clear from the job description that the work is related
to the student’s degree, SEVP highly recommends that the student
obtain a signed letter from the employer’s hiring official, supervisor,
or manager stating how the student’s degree is related to the work
What E-Verify information is required for an F-1 STEM student to extend
his or her OPT?
· The student must provide his or her employer’s name and
its E-Verify company ID, or Client Company ID if it uses a third party
designated agent to perform its verification queries, in item #17 of the
Form I-765 (revised 04/08/08).
Where does an employer find its E-Verify company ID #?
· The employer’s Company Identification Number is located
on the upper left-hand corner of the Memorandum of Understanding (MOU)
which was printed or saved upon registration with E-Verify. Employers
who are unable to locate their company identification number on the MOU
can find their identification number in the system by logging into their
E-Verify account and running a report. To do this, select “View
Reports” from the Reports Menu and then select one of the three
reports available. Enter the report parameters and then select Excel as
the format. The company ID will be located in the upper left hand corner
of the report.
If an employer has concerns about providing an employee with their E-Verify
Company ID, are they still required to provide it?
· The E-Verify Company ID number may be disclosed to an employee
or a prospective employee for this purpose. An employer is not required
to disclose the number, but if it does not, the Form I-765 cannot be completed
and the application for extension of OPT cannot be approved.
If a company enrolls in E-Verify in order to retain or hire an F-1 OPT
STEM student for a 17-month extension, does that company only have to
verify the employment eligibility for that F-1 OPT STEM student and/or
future F-1 OPT STEM students, or for all new hires?
· Once an employer has enrolled in E-Verify, the employer is responsible
for verifying employment eligibility for
all new hires, including newly hired F-1 OPT STEM students with 17-month extensions.
The verification of all new hires must be done at all the hiring sites
identified in the MOU. The E-Verify system is designed only for verifying
the employment eligibility of new hires. If an employer enrolls in E-Verify
to retain the employment of an F-1 OPT STEM student, the employer may
not verify the employment eligibility of that F-1 OPT STEM student employee
as he or she is already an existing employee and not a new one. However,
the student’s I-9 will need to be updated when the STEM extension
is approved in order to document the continuity of the work authorization.
Does the Designated School Official (DSO) need to confirm that the F-1
STEM student’s prospective employer is enrolled in E-Verify?
· No. DSOs are not required to check the employer’s E-Verify
enrollment; however, they are strongly encouraged to advise the student
that the STEM extension will be denied if their employer is not enrolled.
If an F-1 OPT STEM student currently works for two employers and wishes
to apply for the 17-month extension, would both employers have to be enrolled
· Yes, if a student wishes to continue with both employers, each
employer would need to be enrolled in E-Verify. Additionally, each job
must be directly related to the student’s STEM degree.
What if my company is enrolled in E-Verify at some locations, but the hiring
site where the student will be employed is not enrolled – is this
· If the hiring site where the student will be employed has not
been identified in the MOU that the company signed during enrollment,
that hiring site is not considered to be enrolled in E-Verify and therefore
cannot employ an F-1 OPT STEM student under a 17-month extension.
· Employers seeking to employ an F-1 OPT student under a 17-month
extension may enroll in E-Verify in one of two ways: register the hiring
site individually by signing its own MOU or registering the intended job
location as an additional hiring site under the employer’s existing MOU.
This interim final rule allows an F-1 OPT STEM student to extend his or
her employment authorization provided that the student has accepted employment
with an employer who “…is a participant in good standing
in the E-Verify program, as determined by USCIS.” How is “in
good standing” defined?
· To be considered in good standing, an employer must be enrolled
in E-Verify either individually by signing its own MOU or as a hiring
site under another MOU for another location. Once enrolled, the employer
must adhere to the terms and conditions set forth in the MOU. This requires
that the employer verify the employment eligibility of all new hires,
not just the F-1 OPT students.
· The regulatory reference to good standing is intended to emphasize
and clarify that E-Verify participation for purposes of this rule means
more than simply the one-time execution of the MOU; rather, it means continuing
use of the system as provided under the MOU and in compliance with program
requirements. Failure to be a participant in good standing could include
(but is not necessarily limited to) these circumstances: The employer
terminates the MOU; USCIS terminates the MOU, or suspends the employer’s
system access, because of an employer’s substantial failure to follow
its terms and conditions; the employer uses the system for a discriminatory
or otherwise illegal or unauthorized purpose; or the employer has executed
the MOU but substantially fails to use the system to verify newly hired
employees at participating hiring sites. A copy of the MOU and more information
on E-Verify can be found at www.dhs.gov/E-Verify.