On November 8, 2007, a bi-partisan coalition of Senators signed a letter to Michael Chertoff, Secretary of the Department of Homeland Security, urging his office to extend the Optional Practical Training (OPT) period from 12 to 29 months.
Senator Joe Lieberman, chairman of the Senate’s Homeland Security and Governmental Affairs Committee, led the list of signees, which also included Texas Republican John Cornyn, New York Democrat Chuck Schumer, and sixteen other lawmakers from both sides of the aisle.
In the letter, the Senators expressed their commitment to finding a long-term solution to the H-1B visa crisis through legislation. They also reiterated their concern over American loss of competitiveness due to the ongoing acute shortage of visas for highly skilled foreign workers. The Senators presented their appeal for an immediate OPT extension as a temporary measure designed to assist the most recent batch of foreign graduates from American universities, most of whom have been crowded out of the few available H-1B visa openings.
Our firm welcomes such efforts by the coalition, and we encourage all affected parties to contact their Senators and Congressmen to support this initiative.
OPT: A Brief Explanation
Optional Practical Training (OPT) is an opportunity for F-1 student visa holders to obtain employment authorization in order to gain work experience in a field directly related to their subject of study. Current regulations allow up to 12 months of OPT for each degree received (OPT time from multiple degrees in sequence can be added together). OPT is commonly utilized by foreign students seeking employment in the United States after graduation.
Opportunities for H-1B Visa Seekers
Unfortunately, due to the extreme demand for H-1B visas, (the general quota for 2008 was reached on the first day applications were accepted) many highly-qualified workers have been unable to secure legal status by the end of their 12-month OPT period. Extending the OPT period from 12 to 29 months will give foreign graduates much more time to obtain an H-1B visa. The increased likelihood of obtaining legal working status will encourage them to accept employment with American companies, and help prevent the “brain drain” to Europe and other competitive regions.
Opportunities for Immigrant Visa Seekers
Although the Senators’ letter seems designed primarily to provide relief for H-1B seekers and other non-immigrant workers, a 29-month OPT period presents exciting immigration possibilities for highly skilled advanced degree holders, especially for EB-2 NIW self-petitioning aliens.
Nationals of all countries except mainland China and India are currently eligible for second preference employment-based (EB-2) immigrant visa numbers. According to the November, 2007 Visa Bulletin published by the USCIS, visa numbers are available for applications filed on January 1, 2006 for Chinese nationals, and on April 1, 2004 for Indian nationals. Due to this significant backlog, a Chinese or Indian F-1 student about to begin OPT would normally hesitate to file an EB-2 NIW immigration petition if she is not sure she will have H-1B status after the OPT period ends. This is because even if her EB-2 NIW petition were approved, the traditional 12-month OPT period would expire long before she would be eligible to apply to adjust her status. If an alien can not maintain legal status after the expiration of OPT, the alien may become out of status and thus ineligible to “adjust” status to permanent residency.
With a 29-month OPT period, however, the student is granted almost three years of in-status stay in the United States. This means she has approximately three years for immigrant visa numbers to become available to her. Based on the current visa bulletin, 29 months would be just enough time for a Chinese applicant to obtain an immigrant visa number. For Indian applicants, the backlog would still exceed the 29-month OPT period, but there would be a much better chance of obtaining an immigrant visa number in time, especially if the progress of the visa cut-off date accelerates in the future.
If Mr. Chertoff and the DHS choose to lengthen the OPT period to 29 months, Chinese and Indian F-1 students who are eligible for second preference employment-based (EB-2) immigration will have a much better chance of eventually obtaining a visa number. Please refer back to http://www.hooyou.com in the coming weeks to keep updated on this exciting potential development.