On March 31, 2008, the Immigration and Customs Enforcement of the Department of Homeland Security submitted to the Office of Management and Budget (OMB) of the White House an interim final rule titled “Extending Period for Optional Practical Training to 17 Months for Qualified F-1 Students.” This rule proposes extending the optional practical training (OPT) period to 17 months from its current length of 12 months.

The biggest advantage of this new rule is that it could fix the current gap problem caused by the H-1B quota shortage. One can file an H-1B application as early as April 1 for the next fiscal year. However, the approved H-1B will not take effect until October 1. For example, you can file your H-1B application subject to the fiscal year of 2009 on April 1, 2008, but the new H-1B will not take effect until October 1, 2008.

This gap can be problematic for applicants whose current status will expire between April and October. In fact, most foreign students’ OPT will expire between April and July, because that period coincides with the graduation dates of most universities, and subsequently, the beginning of OPT status. The current shortage of H-1B visas due to the H-1B quota has made this gap particularly troublesome for many students.

The extension of OPT to 17 months would be beneficial for many students in OPT status. It would enable a student to apply for an H-1B visa subject to the quotas of two consecutive fiscal years.

For example, Mr. Park, a student from Korea, graduated from college in May, 2007 and applied for OPT status then. His OPT takes effect from May 15, 2007. He also applied for H-1B status subject to the quota of the 2008 fiscal year. Unfortunately, he was not lucky enough to be selected in the lottery for 2008.

Mr. Park is reapplying for the 2009 fiscal year and hopes to selected this time around. However, even if his petition is approved, his OPT expires on May 14, 2008, meaning that there will be a gap in his status from May 2008 to October 2008, when his new H-1B could take effect. To fix this issue, he will have to transfer to another legal status or leave the United States before his OPT expires.

On the other hand, if Mr. Park’s OPT period can be extended to 17 months, he can stay in OPT status until October 14, 2008. He doesn’t need to change status before he applies for H-1B status subject to the 2009 fiscal year quota. As a matter of fact, there is a two-month grace period after his OPT expires. Therefore, Mr. Park can legally stay in the country until December 14, 2008 even if his luck in the H-1B lottery does not improve.
In general, the OMB has up to 90 days to review such rules. It can either approve them for publication in the Federal Register, send them back for revision, or reject them. We hope this new 17-month OPT rule will be approved and take effect soon. It would benefit aliens significantly and ease the H-1B quota shortage issue. We will keep you posted.