Robert M. Vercruysse, Editor; Ann M. Nicklas, William E. Altman, Associate Editors
Vercruysse Murray & Calzone, P.C.

Vol. 19, No. 5
July 2008

IMMIGRATION CORNER

OPT extension proposed for highly skilled foreign students

On April 4, 2008, U.S. Citizenship and Immigration Services (USCIS) announced a proposal to extend the period of Optional Practical Training (OPT) from 12 to 29 months for certain qualified F-1 nonimmigrant students. The new rule is intended to ease the burden on U.S. employers caused by the low number of H-1B visas available annually.

What is OPT?

Foreign students in F-1 nonimmigrant status who have been enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary certified by the U.S. Immigration and Customs Enforcement's Student and Exchange Visitor Program are eligible for OPT following the completion of their studies. Currently, foreign students are permitted to work for 12 months for a U.S. employer in a job directly related to their major area of study. At the end of that period, a student with no employment authorization has 60 days to either change to another nonimmigrant classification, begin a new course of study, or leave the United States.

Proposed rule

The proposed rule, which was open for comments until June 9, 2008, would extend the period of OPT from 12 to 29 months for qualified students. The extension would be available to F-1 students graduating with a bachelor's degree or higher in science, technology, engineering, or mathematics who are employed by U.S. businesses enrolled in the E-Verify program (a computerized program that helps employers determine new hires' employment eligibility and the validity of their social security numbers). The designated degree program list includes computer applications, biological and biomedical sciences, actuarial science, mathematics and statistics, engineering, military technologies, engineering technologies, physical sciences, science technologies, and medical science. The student must currently be in an approved OPT period based on a designated degree. Thus, for example, a student with a qualifying undergraduate degree who is in OPT based on an MBA degree wouldn't qualify.

The rule would also automatically extend the period of stay as well as employment authorization for all F-1 students with pending petitions for a change of status to H-1B. If the USCIS approves the H-1B petition, the student will be granted an F-1/OPT extension that enables him to remain in the United States with work authorization until the requested start date of H-1B status (even if it's longer than 60 days). That provision would ease the situation in which a student has an approved H-1B petition but either must stop work or leave the country before her H-1B status is scheduled to take effect.

The 17-month extension of OPT would also have the benefit of allowing foreign students to apply more than once for H-1B status. The number of H-1B visas available each year is subject to a fairly low quota (65,000, with an additional 20,000 for holders of U.S. master's degrees). The USCIS conducts a lottery for those visas since it usually receives many more petitions than it can accommodate under the quota cap.

Qualifying for the OPT extension

To be eligible for an OPT extension under the proposal, an F-1 student must:

• currently be participating in a 12-month period of approved posteducation OPT;
• have successfully completed a degree in an approved subject from a certified U.S. institution of higher education;
• be working for a U.S. employer in a job directly related to his major area of study;
• be working for an employer enrolled in the E-Verify program; and
• properly maintain F-1 status.

Copyright 2008 M. Lee Smith Publishers LLC

MICHIGAN EMPLOYMENT LAW LETTER is intended to provide information but not provide legal advice regarding any particular situation. The information in this Law Letter is to make you aware of the implications of several contemporary problems. This Law Letter is not intended to be, and should not be regarded as, a legal opinion or legal advice. It is simply not possible or prudent to offer legal advice or a legal opinion without a prior thorough investigation and analysis of the facts attendant to any specific situation.