Important Information Regarding
Optional Practical Training (OPT)

 

 Links to sections:

 

New I-765 Form Required

Effective April 8, 2008, a new version of the I-765 form (OPT application) is required. You can obtain this form from the Assistant Director of International Services or by visiting www.uscis.gov and clicking on Immigration Forms.

 

Extension of Filing Period

USCIS will now accept your OPT applications up to 60 days after you complete your degree requirements. Though we still recommend that you apply at least 1-3 months before you complete your degree requirements, this will help those of you (i.e. doctoral students) who are uncertain about your degree completion date – you can simply wait until after you have submitted your final dissertation/defended successfully to apply. However, you should take note of the 3 month unemployment provision (below).

 

3-Month Unemployment Provision

Regulations now limit the amount of time a student can be “unemployed” at any point while on OPT (though the definition of “employment” has changed; please see below). The new regulations state that a student may not accrue an aggregate (TOTAL) of more than 90 days of unemployment during post completion of studies OPT. Remember, your OPT must begin within 60 days of the day that you complete your degree requirements. SEVP indicated that the days of unemployment will be counted from either the start date requested (no later than 60 days from the day that you complete your degree requirements) OR the date the employment authorization is adjudicated, which is later.


What Does That Mean?

  • Example 1: You apply for OPT with a start date of 60 days after you complete your degree requirements - 2/19. Your request is adjudicated on 1/28 and you receive your card on 2/1. Your 90 days unemployment count does not begin until 2/19 (the start date of OPT).
  • Example 2: You apply for OPT with a start date of 60 days after you complete your degree requirements - 2/19. Your request is not adjudicated until 3/10. Though the start date on your card will not be adjusted (your OPT still starts on 2/19) your 90 days unemployment count does not begin until 3/10.

 

90 Days of Unemployment is Aggregate Accrual

This means that the maximum number of total days you can be unemployed is 90 – after 90 days (3 months) of total unemployment, your OPT will be cancelled (this includes time spent unemployed between jobs). The 90 days unemployment provision is extended to 120 total days for students who are granted the STEM extension (please see below for more information).

 

With this provision it is very important that you choose the start date of your OPT wisely. Students applying for OPT are recommended to apply with the start dates suggested below:

 

If you DO NOT have a job prospect /offer at the time of your OPT application

Request a start date for OPT at the end of your 60-day grace period

If you have a job prospect /offer at the time of your OPT application

Request a start date for OPT to begin when your position begins (within 60 days of your completion date) OR

Request a start date for OPT to begin within  75-90 days of the date of the application OR

Request a start date for OPT at the end of your 60-day grace period (if the position will begin after this time)

 

Why Delay the Start Date if I Don’t Have a Job?

Though this will mean that you have to wait to begin a position if you find one earlier than the end of your 60-day grace period, this will allow us to delay the start of the unemployment provision count and buy you the extra time needed to find an OPT-approvable position.

 

Updates to Categories and Types of OPT-Acceptable Employment

Important Clarification: In light of the above provisions, there have also been some changes to the types of employment that are now acceptable while on OPT.  

 

For regular post-completion OPT, the employment does NOT have to paid employment. Therefore, a student who is self-employed (including performance majors with regular “gigs”), interning or volunteering in a position directly related to the academic field would be considered “employed” for the purposes of OPT employment. For the 17-month STEM extension (for those who qualify; please see below), employment must be traditional paid employment.

 

This will be good news for those of you are unable to find traditional paid employment but who are able to find a volunteer or intern position – as it will ensure that the three-month unemployment provision does not affect you as long as you can find a volunteer/intern opportunity (and as long as that opportunity still meets OPT requirements).

 

There is also a new “self-employed” category, though you should be very careful of using this category as you may be asked to provide verification of such self-employment (please see below for examples of intended use of this category).

 

Reporting Employment - While on OPT you must report all periods of employment (and all periods of unemployment – remember, you cannot accumulate a total of 90 days of unemployment at any point in your OPT) to the Assistant Director of International Services (your DSO), in addition to reporting all changes in your address. It is VERY important that you remember to do this as USCIS will cancel your OPT after 3 months of unemployment (or unreported employment). Please review the chart below for guidelines on reporting employment to the Assistant Director of International Services.

 

Situation

How to Report Information

Employed by one employer

Provide your employer’s name and address

Multiple employers – you may now have more than one OPT employer, as long as the total time between these positions places you at full-time employment.

List all employer’s names and addresses, indicate which employer is your primary employer

Self-employed – i.e. art students who are “self-employing” themselves while completing works

Indicate you are self-employed and give the business address (which can be the same as your personal address)

Students with performing arts degrees who have multiple short-term jobs (gigs)

i.e. Showing at a gallery, “guest curator” for a limited period, etc.

If self-employed, indicate this as “Self-employed performing arts student.” Update your DSO with a list of gigs on a regular basis.

If working for an agency, indicate the agency as the employer and list the agency’s address.

Not currently employed

Report any termination/cessation in employment. Indicate “none” for the employer and indicate the start date of the unemployment. Remember to update the Assistant Director of International Services again with any new employment information.

 

 

H1B “Cap Gap” Provisions

A new regulation now allows F-1 students who have applied for an H-1B to have his/her F-1 status automatically extended until October 1 of the year in which the student is applying. Duration of status and work authorization will automatically be extended for a student on OPT who is the beneficiary of a timely filed H-1B petition requesting an employment start date of October 1 of the following fiscal year. This would apply to all students on OPT, not just STEM students. To obtain the automatic extension, a student must be the beneficiary of an H-1B petition filed for the next fiscal year (with an October 1 employment start date) and have requested a change of status (new step). The extension of duration of status and work authorization would automatically terminate upon the rejection, denial, or revocation of the H-1B petition filed on the student's behalf.

 

What Does This Mean

Previously, students who hit the H1B “gap” were required to stop employment and a) return to their home country or b) transfer to another school to maintain their F-1 status until their H1 status began. This new provision allows a student with a pending H1 visa application to remain in the US and continue employment until such time as the H1 is approved and takes effect on October 1st. This, in effect, eliminates the H1 gap problem.

 

Example: A student’s OPT expires on June 30 and he has filed for H1B for October 1. His duration of status has now automatically been extended until October 1. October 1 is the date that the F-1 will have his F-1 status changed to H-1B. The student will not have to apply for this automatic extension; it will automatically be extended without any fee. The student does not receive a new EAD card but he is eligible to continue working. The status of his wife (F-2 dependent) is also automatically extended without application.

 

BUT the important thing to note with this regulation is that ”the extension of duration of status and work authorization would automatically terminate upon the rejection, denial, or revocation of the H-1B petition filed on the student's behalf.

 

Example: A student’s OPT expires on June 30 and he has filed for H1B for October 1. It is assumed that by June 1 that any H-1B petitions not selected in that year’s H-1B lottery will be returned in the mail. This student does not receive H-1 approval. In this case, his F-1 OPT status will not be extended until October 1, but instead the OPT will expire, as is indicated on his employment card, on June 30.

 

 

Additional Cap Gap Provisions

  • The extension for “cap gap” status and work authorization officially commences on the date of filing the H-1B (the date received by USCIS), not the receipt date.
  • If a student’s OPT end date was before the filing of an H-1B petition on April 1, 2008, but s/he is still within the 60 day grace period as of April 8, 2008, the student's F-1 status would be extended under this provision. However, it is not clear whether the expired work authorization would be revived. USCIS and SEVP are consulting with counsel.
  • For a student who is the beneficiary of an H-1B petition for a cap exempt (higher education) employer, USCIS will likely NOT recognize that s/he is eligible for the extension of status & work authorization under the cap gap provision of this rule. The rationale is that a cap exempt employer can choose a start date that matches the end of authorized F-1 status or work authorization. USCIS and SEVP are consulting with counsel.
  • The automatic extension terminates when USCIS rejects, denies, or revokes the H-1B petition. However, the student would have a grace period after the termination during which s/he is authorized to remain in the United States for up to 60 days to prepare for departure from US, change degree level, transfer, change status, etc. as long as the student has not otherwise violated status.
  • USCIS and SEVP are developing a policy regarding documentation that would prove that a student’s status and authorization have been extended. Most likely, it will involve a SEVIS data fix with notation on the I-20, e.g. “F-1 status and work authorization extended to…(insert date).” If this is the case, you will most likely need to work with the Assistant Director of International Services (your DSO) to make this notation.

NOTE: Information and regulatory practices surrounding this provision are still being discussed. Please continue to periodically check this website for additional updates.

 

STEM 17-month Extension

Students earning a degree in the following fields/schools ONLY will qualify for the STEM 17-month extension at Claremont Graduate University:

  • Financial Engineering
  • Information Systems & Technology
  • Mathematics

 

All other degrees (including those in the business, liberal or performing arts, and social studies categories) are not eligible for the STEM 17-month extension as it is currently defined.

 

Filing for the 17-month STEM Extension

You must file for the STEM Extension before your 12-month OPT expires. You will need to work with the Assistant Director of International Services to request the Extension. Requirements for the 17-month extension include:

  • Student must have successfully completed a bachelor's, master's, or doctoral degree in a field on the DHS STEM Designated Degree Program List, from a SEVIS-certified college or university.
  • Student must be currently participating in a period of standard OPT based on a bachelor's, master's, or doctoral degree on the DHS STEM Designated Degree Program List, working for a U.S. employer in a job directly related to the student’s major area of study.
  • Student must have a job offer from an employer registered with the E-Verify employment verification system.
  • The student has not previously received a 17-month OPT extension after earning a STEM degree.
  • The DSO must recommend the 17-month OPT extension in SEVIS, after verifying the student's eligibility, certifying that the student's degree is on the STEM Designated Degree Program List, and ensuring that the student is aware of his or her responsibilities for maintaining status while on OPT.
  • Student will have to apply for the 17-month extension on Form I-765 with fee.
  • Students who timely file an application for the 17-month OPT extension will be able to continue employment while the extension application is pending, until a final decision on the I-765 or for 180 days, whichever comes first.
  • The student is responsible to make a “validation report” to the DSO every six months beginning when the additional 17 months begins to the end of the F1 status. In addition, you must file a report when you experience a change in educational level at the same school, you transfer to another school or program, or you reach the end date of your 17-month OPT extension (i.e. change of status to another visa, going home), whichever is first. Even if there are no changes to report to the DSO the student must still report. Again, This means that the student who has been granted an additional 17 months of OPT must report back to the DSO every six months. Failure to comply with these mandates will render the student  “out of status”.
  • The employer must agree to report the termination or departure of the student to the DSO or through "any other means or process identified by DHS." An employer must consider a worker to have departed when the employer knows the student has left employment, or if the student has not reported for work for a period of five consecutive business days without the employer's consent.
  • You may apply for the STEM Extension only once per your “immigration lifetime.” This means that if you use your STEM Extension at the bachelors/masters level, it will not be available to you at the next (masters/doctoral) level. You must decide when in your educational career you wish to use your STEM Extension.

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