The Optional Practical Training Interim Final Rule
Information for Employers on the Cap-Gap Extension of Optional Practical Training.
By the time this column appears, all cap subject H-1B petitions will have already been filed with the USCIS for the entire USCIS fiscal year. As USCIS begins to select the lucky H-1B lottery winners, Employers and those seeking H-1B status have many questions regarding what will happen during the interim period when a foreign student’s optional practical training ends before October 1, 2009, the first possible date for a cap subject H-1B to begin.
To review, on April 8, 2008, the Department of Homeland Security published an Interim Final Rule titled, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With PendingH-1B Petitions. One provision of the rule applies to F-1 students who are the beneficiaries of a pending or approved H-1B petition that is subject to the annual cap. The IFR automatically extends the F-1status and, for students in a period of approved post-completion OPT when the H-1B petition is filed, the OPT employment authorization.
The cap-gap extension of OPT is automatic for eligible students. A student does not file an application for the extension or receive a new EAD to cover the additional time. The only proof of continued employment authorization currently available to an affected student is an updated Form I-20 showing an extension of OPT, on page 3. This document serves as proof of continued employment authorization. The automatic extension of an F-1 student's duration of status and employment authorization is terminated upon the rejection, denial, or revocation of the H-1B petition filed on the F-1 student's behalf.
A student who is eligible for the cap-gap extension must work with a designated school official (DSO) at the student’s school to receive an updated Form I-20. If a student is eligible for the cap gap extension of OPT, the student can continue to work while the update to his or her Form I-20is being processed. Because the cap-gap extension is automatic, the updated Form I-20 is not required for a student to continue working; it merely serves as proof of the extension of OPT employment authorization.
To assist a student in obtaining an updated Form I-20, you may need to provide the student with an I-797 receipt or approval notice issued by U.S. Citizenship and Immigration Services for theH-1B petition filed on the student’s behalf. This receipt notice serves as proof of filing the H-1Bpetition and may need to be submitted to SEVP in order to update a student’s Form I-20 to show eligibility for the cap-gap extension.
Should you have any specific questions that are not addressed in this Fact Sheet, please contact SEVP by e-mail at [email protected].