Updated information as of 05.06.08

Effective Tuesday, April 8, a new rule was published that affects F-1 Optional Practical Training (OPT) in three different areas. Although the rule is final, there are many  details that remain unclear. Therefore,  information in this message may be subject to change. The OISS is securing further information from the Student and Exchange Visitor Program (SEVP) an office in the Department of Home land Security in order to continue to update its policy.

This message is an overview of the changes. Students who are already on or about to begin post-completion  OPT are immediately affected. For other students, use this information for future planning.

1. All Students Currently  on or About to Begin Post-Completion OPT

Expanded Defintion of OPT
Traditionally, OPT has been defined as employment that is related to the student's degree major and appropriate for the degree level. That remains in place, however, the government has expanded the types of activity that qualify as OPT. OPT may be in any of these forms:
1. working for one or multiple employers (short or long term)
2. working on a contractual basis
3. working as a self-employed business owner on a full-time basis (with evidence of the proper business license)
4. working through an agency
5. volunteering or holding an unpaid internship (as long as the position does not violate any labor laws).

For further information regarding work as a contractor or self-employed business owner, students should consult an attorney.

With regard to volunteer or unpaid internship activity, it is important that these are positions that do not displace or replicate a paid position within the organization. That is, volunteer or unpaid internships are non-compensated and are on-going positions. For example, the government could consider it a violation of labor laws for a position to be called “volunteer” and then the same position automatically “converted” to paid once the student's EAD was issued. For further clarification regarding labor laws, students should consult with a company's human resources department or lawyer.

Post-completion OPT must be at least 20 hours of activity per week. In the case of a self-employed business owner, the student must work full time.

Students must keep evidence of any and all OPT activity for their personal records, including the position held, dates of the position, supervisor name, organization name and location, and description of activity. If the government wishes to review a student's OPT activities, it is the student's responsibility to provide requested information.

Timeframe to Apply
Students may apply for post-completion OPT up to 90 days prior to their completion date. The deadline to apply for post-completion OPT has been extended so that students may file their applications with the government by the 60th day following completion of studies. However, the OISS strongly encourages students to apply before their completion date.

The government has not yet updated the SEVIS database, so all applications submitted after the completion date require additional processing time. Post-completion OPT must end within 14 months of the completion date. Therefore, waiting to file will likely result in a reduction of actual OPT authorized.

Unemployment not to Exceed 90 days
SEVP has now placed limits on how long a student may be unemployed, effective April 8, 2008. That means for students already on post-completion OPT, the “unemployment clock” started ticking April 8. For all other students, the “unemployment clock” starts with the first day of your EAD.

Students may not have more than 90 days of unemployment during post-completion OPT. (Unemployment is not counted during pre-completion OPT).

Review the expanded definition of OPT to ensure that you are in compliance with OPT activity. The unemployment clock continues while a student travels outside the country, if the student does not have qualified OPT activity. However, the government does allow a ten-day period to change employers and those ten days are not counted on the “unemployment clock.”

SEVP has stated that students may be denied future immigration benefits that rely on being in status if the Department of Home land Security determines the student was unemployed more than 90 days The OISS is seeking further information from SEVP on this issue.

Report Changes during OPT to the OISS
SEVP states that students must report the following changes to the OISS within ten days of their occurrence:
-change in legal name,
-change in mailing or residential address,
-change in employer (supply name and address of the employer, as well as the start date of employment)
-being unemployed for ten or more days,
-decision to depart the U.S., return to school full time, change status, or otherwise cease OPT activities.

Report changes to the OISS by e-mailing oiss.records@nyu.edu . SEVP instructs students to keep a personal record of all reports made to the OISS regarding such changes.

2. Students on Post-Completion OPT Who Have Filed for an H-1B

The government has provided an extension of work authorization for students on post-completion OPT, known as the "cap gap" extension, who filed a timely application for an H-1B with an October 1 start date. Review HERE, then consult with your lawyer or employer for guidance regarding the next step and the status of your H-1B application.

Consult with your attorney for guidance regarding travel .

The 90-day “unemployment clock” applies during the “cap gap” employment period.

Consult with your attorney or employer in order to ascertain your H-1B petition status and secure the requisite documentation to submit to the OISS. Processing of “cap gap” I-20s requires a data fix in the SEVIS database by the government, thus students should allow for a processing time of at least three weeks for an I-20.

SEVP states that “students will not be personally notified by the Department of Home land Security of a withdrawn or denied H-1B petition, so they must remain in contact with the sponsoring employer and their DSO. It is the student's responsibility to check regularly on his or her status.”

Following are the documents students must bring to the OISS for a cap-gap extension:

The government has provided guidance regarding the length of the cap cap extension and the action the student must take. The following chart provides more detailed guidance.

Events Impacting the Length of the Cap Gap Extension:

Note 1: If a student's regular period of OPT extends to June 2, the student does not need to make the request

Note 2: If a student's regular period of OPT extends to July 28, the student does not need to make the request

 

3. Ability to Apply for Extended OPT for “STEM” Students

Based on government classifications of majors known as “CIP” codes, students in certain STEM ( S cience, T echnology, E ngineering, M athematics) fields may be able to apply for an additional 17 months of OPT. The 17-month extension is a once-in-a-lifetime benefit. There are several strict requirements to qualify, including:

- The student must currently be authorized for post-completion OPT

- The student must have successfully completed an NYU bachelor's, master's, or doctoral degree in the STEM field

- The job offer must be with a company enrolled in the government's E-Verify program

- The student must file an application with the OISS before the current OPT period ends

- The student must agree to report updates regarding their name, address, place of employment, and continuation of employment to the OISS every six months

- The employer must agree to notify the OISS upon termination or departure of the student

-The student may not exceed 120 days of unemployment, based on previous post-completion OPT and STEM OPT

The OISS is in the process of implementing this new procedure. If you are a student whose post-completion OPT will expire by the end of May and you believe you meet the criteria outlined above for STEM OPT, including having an employer who is currently in the E-Verify program, please contact the OISS directly.

It is imperative that you read Dateline OISS for updated information. The OISS will continue to update the website and other OISS resources as information is confirmed by SEVP and new policy and procedures are implemented by the OISS.