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The Report Regulations and Unemployment Limit in OPT Extension

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    2008-07-1321:08:12 #145748
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    On April 8, 2008 the USCIS published an interim final rule which make changes, effective immediately, to post-completion optional practical training for F-1 non-immigrant students. The optional practical training allows F-1 students to engage in temporary employment that directly relates to their area of study. Prior to the new rules, F-1 students could only receive a total of 12 months of practical training, either before and/or after completing their course of study. Because of this, many students faced the F-1/H-1B “cap-gap,” which occurs when the students F-1 status and work authorization expires before they can start their H-1B employment which is approved for the next fiscal year starting on October 1.

    The new rule allows qualified STEM major F-1 students who are in post-completion OPT to extend the OPT for up to an additional 17 months, for a total of up to 29 months of practical training. It also automatically extends the F-1 status for students who have had H-1B petitions for the next fiscal year filed on their behalf, and if the H-1B petition is approved, the student may remain in the US until the October 1st start date. If the student was on post-completion OPT when the H-1B was selected, he/she may also continue working until the H-1B start date. This eliminates the “cap-gap” for many F-1 students.

    However, while these changes provide many positive benefits for F-1 students, there are also new restrictions and regulations for students on post-completion OPT.

    Reporting Regulations

    Under past regulations, all students on OPT were required to report personal and employer changes to their designated school official (DSO) within ten days of the change; the new rule strengthen these regulations. Changes that must be reported include change in jobs, short term employment, self-employed business ownership, change in employer address or employer name, terminations of employment, and any periods of unemployment; it also includes any changes to the legal name, residential or mailing address, or E-mail address of the student.

    This new rule states that on students on the 17 month OPT extension are now required to report to their DSO every six months starting from the date of extension to confirm all employment and personal information, even if there has been no change since the last report. The validation report must include:

    • Full legal name
    • SEVIS identification number (if requested by the school)
    • Current mailing and residential address
    • Name and address of current employer
    • Employment start date for the current employer

    The DSO is also required to report any changes to the Immigration and Custom Enforcement’s Student and Exchange Visitor Program (SEVP) within twenty one days.

    Also, employers are required to report information and fulfill requirements in order to employ a post-completion OPT student. According to the regulations, students on OPT extensions may only work for employers who are enrolled and “in good standing” with the E-Verify system run by the USCIS. In order to enroll in the E-Verify program, an employer must agree to abide by current legal hiring procedure and verify all newly-hired employees, including those not on OPT, through the E-Verify system within three days of hiring. Also, the employer must report to the DSO when the student terminates his/her employment within 48 hours of the end of employment.

    According the regulations, failure to complete the necessary reports is a basis for termination of the student’s status and can also affect the school’s visa and OPT programs as well as the future OPT eligibility of the employer.

    Unemployment limit

    In order to remain in valid F-1 status, a student is required to be in an approved full-time course of study or be employed through their post-completion OPT. A student who drops out of school or is not a in a full-time course of study could lose their F-1 status. Similarly, F-1 students on OPT who are unemployed for extended periods of time jeopardizes his/her status. However, previous regulations did not place a limit on the length of time a student on post-completion OPT could be unemployed.

    The new rule places a limit on the period of unemployment during the OPT period. Students who are on post-completion OPT or who have their OPT extended because of the cap-gap provision of the interim final rule, have up to 90 days total of unemployment. If a student receives a 17-month extension, he/she is given an additional 30 days of unemployment for a total of 120 days.

    Unemployment days are considered any day from the start of the OPT authorization to the end during which the student is not working in an approved position. However, there is a little flexibility for job hunting or a break in between employers. Periods of unemployment up to 10 days between the end of one qualified job and the start of the next qualified job do not count toward the unemployment limit.

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