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USCIS ANNOUNCES NEW RULE ALLOWING EXTENSION OF OPTIONAL TRAINING PROGRAM FOR QUALIFIED STUDENTS

USCIS ANNOUNCES NEW RULE ALLOWING EXTENSION OF OPTIONAL
TRAINING PROGRAM FOR QUALIFIED STUDENTS
Rule Expands “Cap-Gap” Relief for Students with Pending H-1B Petitions
PRIOR F-1 REGULATIONS RELATING TO PRACTICAL TRAINING:

What is optional practical training?
Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major
area of study.  Under existing rules, an F-1 student may be authorized to receive up to 12 months of practical training either pre- and/or post- completion of studies.
• Pre-completion OPT:  
An F-1 student may be authorized to participate in pre-completion OPT after he/she has been enrolled for
one full academic year.  The pre-completion OPT must be directly related to the student’s course of study.
Students authorized to participate in pre-completion OPT must work part-time while school is in session.
They may work full time when school is not in session.
• Post-completion OPT:  
An F-1 student may be authorized to participate in post-completion OPT upon completion of studies.  The
post-completion OPT must be directly related to the student’s course of study.
What is the application process to participate in pre- or post-completion OPT?
• Students must initiate a request by having their Designated School Official (DSO) recommend the OPT
by endorsing Form I-20 and by making the appropriate notation in SEVIS, the system used to track F-1
academic students.
• Students then file Form I-765, Application for Employment Authorization Document (EAD), with
USCIS.  If approved, the student will be issued an EAD.
• The student may begin engaging in pre- or post-completion OPT once an application has been approved
and an EAD has been issued.
How many students stand to benefit from today’s announcement?
• There are approximately 26,000 students on OPT that have earned a bachelor's, master's, or doctorate in a
STEM field. ICE and USCIS estimate that approximately 12,000 will take advantage of the STEM
extension. Some of these students will be selected for an H-1B to start October 2009. Others may choose
to continue their education, while some will depart the United States.
• We estimate another 10,000 students will benefit from the automatic "cap gap" extension.
What is the maximum duration of post-completion OPT?
• Under the new rule, certain students will be eligible to receive a 17 month STEM extension of postcompletion OPT.    Do the periods of pre-completion OPT count against the available periods of post-completion OPT?
• Yes.  All periods of pre-completion OPT are deducted from the available periods of post-completion
OPT.
Are there fees associated with filing for extended OPT?
• Yes.  USCIS charges $380.00 when an applicant files an I-765 for optional practical training.
CURRENT H-1B/CAP GAP REGULATIONS FOR F-1 ACADEMIC STUDENTS:
What is the H-1B cap?
• The cap is the Congressionally-mandated limit on the number of individuals who may be granted H-1B
status during each fiscal year.  For FY08, the cap is 65,000.
What is the cap-gap?
• Cap-gap occurs when an F-1 student’s status and work authorization expire in the current fiscal year,
before they can start their approved H-1B employment in the next fiscal year beginning on October 1. An
F-1 student in a cap-gap situation would have to leave the United States and return at the time his or her
H-1B status becomes effective at the beginning of the next fiscal year.
How does cap gap occur?
• Many employers file H-1B petitions on behalf of F-1 students after their post-completion OPT expires.
An employer can not file, and USCIS could not approve, an H-1B petition submitted earlier than six
months in advance of the date of actual need for the beneficiary’s services or training.
As a result, the earliest date that an employer can file an H-1B petition for consideration under the next
fiscal year cap is April 1, for an October 1 employment start date.  If that H-1B petition and the
accompanying change of status request are approved, the earliest date that the student may start approved
H-1B employment is October 1.  
Consequently, F-1 students who are the beneficiaries of approved H-1B petitions, but whose periods of
authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day
departure preparation period) expire before October 1, must leave the United States, apply for an H-1B
visa at a consular post abroad, and then seek readmission to the United States in H-1B status.  
What are the current cap-gap regulations?
• Current regulations address the cap gap by authorizing an extension of the student’s authorized stay, but
they do not extend the student’s employment authorization.  This extension was not automatic, which
meant that a notice had to be published in the Federal Register announcing the extension.
• When this Federal Register notice was published, the student’s authorized stay was extended, but not the
employment authorization.  This means the student can remain in the United States until October 1, when
the approved H-1B employment can begin, but cannot work until then.
• If a Federal Register notice is not published, the student must leave the United States, apply for an H-1B
visa, and seek readmission to the United States in H-1B status.
How is the cap-gap situation changed under the interim final rule?
• F-1 academic students on post-completion OPT maintain valid F-1 status until the expiration of their
OPT.  Once that OPT has ended, they are authorized to remain in the United States for up to 60 days to
prepare for departure.  • This cap-gap extension automatically becomes effective when the H-1B cap has been reached and the
student has an H-1B petition filed on his/her behalf during the acceptance period.
• If the H-1B petition filed on behalf of the student is not selected during the acceptance period, the
automatic extension terminates when USCIS announces completion of the random selection on its public
web site.  
• If the H-1B petition filed on behalf of the student is selected during the acceptance period, the student
may remain in the United States and continue working until the October 1 start date indicated on the
approved H-1B petition. The student may benefit from this provision only if he/she has not violated
his/her status.
What is covered and clarified under the interim OPT Rule?
• F-1 academic students may now apply for post-completion OPT 90 days before their academic programs
end and no later than 60 days after their academic programs end.
• This allows F-1 students seeking post-completion OPT to apply during their 60-day departure preparation
periods, in the same way that they are allowed to apply for H-1B status during their departure preparation
periods.  
• This allows students to ensure that they meet graduation requirements before applying for postcompletion OPT.
Is there additional post-completion OPT available to students in the high-tech industry?
• F-1 academic students who receive science, technology, engineering, and mathematics (STEM) degrees
and who receive an initial grant of post-completion OPT, may apply for a 17-month extension for a
maximum of 29 months of post-completion OPT.  
• This gives U.S. businesses two chances recruit these highly desirable graduates through the H-1B process.
Who is responsible for the development of the designated list of STEM degrees?
• The STEM Designated Degree Program List is based on the "Classification of Instructional Programs"
developed by the U.S. Department of Education's National Center for Education Statistics.  
What are the eligible STEM degrees?
• To be eligible for the 17-month OPT extension, a student must have received a degree in one of the
following fields:
• Computer Science Applications  • Life Sciences
• Actuarial Science  • Mathematics
• Engineering  • Military Technologies
• Engineering Technologies  • Physical Sciences.
• The STEM degree list is posted on http://www.ice.gov/sevis.  
What are the eligibility requirements for the 17-month extension of post-completion OPT?
• The student must have a bachelor’s, master’s or doctorate degree in a STEM field.  
• The employer must be enrolled in E-Verify.
• The student must apply on time (at least 90 days before the current post-completion OPT expires).  What is the E-Verify program?
• The E-Verify program is an internet-based system operated by USCIS, in partnership with the Social
Security Administration (SSA).
• The E-Verify program currently is the best means available for employers to determine employment
eligibility of new hires and the validity of their Social Security Numbers.  
• E-Verify electronically compares information contained on the Employment Eligibility Verification Form
I-9 with records contained in SSA and DHS databases to help employers verify identity and employment
eligibility of newly-hired employees.  
Is there a cost associated with employers participating in the E-Verify program?
• No, E-Verify is a free, easy to use web-based system available to employers and in all 50 states, the
District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.  
What is the application process for the 17-month STEM extension?
• The student files Form I-765 with USCIS, Form I-20 endorsed by the DSO, a copy of the STEM degree,
and the required application fee.
• Form I-765 is being amended to require the student to indicate the degree and provide the employer’s EVerify information.  
• Students who timely file their STEM extension applications with USCIS may continue working while
their applications are pending for 180 days or the date of the decision, whichever date is earlier.  
• This interim extension minimizes disruption in the student’s employment and also ensures that employers
will conduct the necessary employment eligibility re-verification.  
What must a student do after being granted the 17-month STEM extension?
• The student must report to his or her DSO (by email, within 10 days) any change in:
- Legal name;
- Residential and mailing address;
- E-mail address;
- Employer name;
- Employer address;
- Job title or position;
- Supervisor name and contact information;
- Employment start-date; and
- Employment end-date
• The student must also report to his or her DSO every six months (by email), confirming the information
listed above; even if there have been no changes.
• The requirement to report continues if the student’s 17-month STEM extension is extended further by the
automatic cap-gap extension. LINK TO USCIS MEMO

OPT Extensions under H-1B Cap-Gap Regulations

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students. 

Q2. How does “Cap-Gap” Occur?A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.  Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension? 

A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension. 

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.

.

Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States. 

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing. 

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status? A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1. 

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted.  The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.  

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval.  In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended?A7. That is correct.  F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended). 

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?A8:  Yes.  The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization.  F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?A10. Yes.  However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date.  However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date.  What should the student do to correct this?A11. The student should contact their DSO.  The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk. 

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

• The student finds employment appropriate to his or her OPT
• The period of OPT is unexpired; and
• The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date.  Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

 This Article was posted on USCIS Site

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OPT H1B CAP GAP EXTENSION FAQ

OPT H1B CAP GAP EXTENSION FAQ 

F1 students are eligible to stay in the US and OPT work authorization will be extended for a student authorized for OPT, who is the beneficiary of a timely-filed H1B petition being considered in the “lottery” with a requested employment start date of October 1, after fiscal year 2008. The F1 student status and work authorization will automatically terminate upon the rejection, denial, or revocation of the H1B petition filed on the student's behalf.  

The date the USCIS Service Center receives a properly filed Form I-129, Petition for a Nonimmigrant Worker, naming the student as a beneficiary of the petition from the prospective employer starts the period of “Cap Gap” F1 extension. The cap gap extension starts when the student’s current period of F1 status ends, regardless of whether the student was in a period of OPT. If the student is in their “grace period” the day the service center receives the I-129, then the extension of status starts on the day after the student’s initial grace period expires.  

Can I work during the cap gap extension if my I-129 H1B application was received during my 60 day grace period? 

No. In order for a student to have employment authorization during the cap gap extension, the student must be in an approved period of OPT on the date the I-129 application was received. 

Do I need to file an application to receive a cap gap extension? 

No. The extension is granted at no cost. However, F1 students must provide a copy of the I-797 to the DSO/International Advisor of any approved, pending, or wait listed I-129 listing them as the beneficiary. It is important to note that although the law automatically grants an extension, the SEVIS record will likely not show the extension. As a result, to ensure that the International Student Advisors can issue you a new I-20 documenting the appropriate “Cap Gap” extension, students must provide a copy of the I-797 to the DSO/ International Advisor  of any approved, pending, or wait listed I-129 application listing them as the beneficiary.  Due to the software incompatibilities with SEVIS as a result of the required transfer of electronic information, students will receive “cap gap” I-20 extensions in increments, as the petition goes through the steps of filing, receipting, and adjudication. 

A student whose employer properly filed an H1B petition that is being considered in the “lottery” will 

have his or her OPT extended to June 2, 2008, and F-1 status extended to August 2, 2008 (petitions with 

a receipt notice). ƒ A student whose employer filed a H1B petition that has been wait listed will have his or her OPT extended to July 28, 2008, and F-1 status extended to September 27, 2008 (USCIS will issue a letter to the employer indicating wait list status) 

A student whose employer filed a H1B petition that is approved will have his or her OPT and F-1 status 

extended to September 30, 2008 (USCIS will issue an approval notice) 

A student whose H-1B petition is withdrawn or denied will have his or her OPT extension terminate 10 

days after the date of the withdrawal or denial and their F-1 status extension will end 30 days after that. 

Termination of the extension will not shorten the student’s 12 month authorized period of OPT, as shown on the student’s employment authorization document or the student’s original period of F-1 status. 

How will F1 students know they have a cap gap extension? 

Students must remain in contact with the employer that filed the Form I-129 (Petition for an H1B Nonimmigrant Worker) on their behalf and with their DSO. Until USCIS issues receipt notices, only the petitioning employer will know when the application was properly filed or wait listed. The student may obtain evidence from the employer for either of these two events and submit the UAH SEVIS Update form to the DSO to initiate the process to obtain a new I-20 showing the “cap gap” extension.  When USCIS has approved an H-1B petition, the information is supposed to be entered into CLAIMS (the system used by the USCIS Service Centers) and it is used to update SEVIS. However, there are cases where the data from the interface does not properly update SEVIS. For this reason, we suggest that all F1 students submit 

the SEVIS Update form and documentation of the H1B petition being filed. This will ensure that the DSO has the information necessary to contact immigration and get the SEVIS record updated with the extension. 

What do I need to submit to UAH so my DSO can request a SEVIS data fix? 

1) The SEVIS Update form and the appropriate documentation listed below: 

a.  For a properly filed H-1B petition

i. A statement from the employer that the student is the beneficiary listed on a properly filed H-

1B petition 

ii. Proof of delivery to a USCIS Service Center showing the date of receipt 

b.  For a wait listed H-1B petition

i. A copy of the wait list letter from USCIS to the employer 

c.  For a receipted or approved H-1B application

i.  A copy of the receipt (Form I-797) and/or the receipt number

Can I travel outside the United States during a cap gap extension period and  return in F-1 status? 

Yes, if your EAD will be valid upon your return. If the EAD will expire prior to your return, then you must 

obtain an H-1B visa to return to the United States to assume H-1B employment. 

Do the limits on unemployment time apply to the cap gap extension? 

Yes. The 90 day limitation on unemployment continues during the cap gap extension. 

What I need to report to my DSO while authorized for a cap gap extension? 

As with all students on post-completion OPT, you must report any change of address within 10 days, any legal name change, and interruptions of employment.  

Are there restrictions on the type of employment for cap gap OPT? 

All OPT employment, including post-completion OPT, must be in a job that is related to the student’s degree program. Students must be able to provide evidence showing the relationship of the work to their field of study and that they worked an average of at least 20 hours per week. There are two types of eligible employment (not applicable for STEM extension OPT): Paid employment. Work may be part time or full time although it is expected that the student pursue full time employment while authorized for OPT. ƒ Single employer. One employer that pays you (even if your physical location of work changes). This includes employment through an agency.  

Multiple employers. More than one employer (receive separate paychecks from each employer).  

Short-term multiple employers. Students, such as musicians and other performing artists may work for  multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration. If requested by immigration, students must be prepared to provide evidence showing a list of all gigs. 

Contract Employee/Work for hire. This is also commonly referred to as 1099 employment where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by immigration, students must be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company. 

Self-employed business owner. Students on OPT may start a business and be self-employed. In this situation, the student must work full time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student’s degree program. Unpaid employment. Students may work as volunteers or unpaid interns, where this does not violate any labor laws. The work must be at least 20 hours per week for students on post-completion OPT. These students must be able to provide evidence from the employer that the student worked at least 20 hours per week during the period of employment. 

F1 to OPT to H1B Process

F1 to OPT - Optional Practical Training
Upon graduation, the F1 student is likely already quite familiar with OPT (Optional Practical Training). Students studying with an F1 visa are eligible to work in the USA under the OPT visa program, which affords the student the opportunity to apply theoretical knowledge obtained in an academic program to a practical work experience. Any employment opportunity that the student encounters must be directly related to his or her major field of study in order to qualify as OPT. OPT may be full or part time, depending on the circumstances and may take place anywhere in the country. 

An F1 student may apply to use OPT during vacation periods, during the academic year or after completion of his or her studies. Students involved in graduate programs, i.e., those pursuing a master’s degree or Ph.D. which may include a thesis or dissertation requirement can apply for OPT upon completion of all coursework. Any work under OPT must be endorsed by the institution’s Office of International Students and Scholars (“OISS”) and must be authorized by the BCIS (formerly the INS) before the student can start working. In order to be eligible for OPT, the student must be enrolled in a full course of study for at least one full academic year. Authorization for OPT can take up to 90 days so applications for OPT should be submitted with this time lapse in mind. 

No work can commence until the BCIS approves the application. Once the duration of OPT has been consumed, the student is no longer eligible to stay in the United States without a change of status. A common course for students at this point is to change their status to an H1B upon finding a sponsoring employer (converting from F1 to OPT and then to H1B visa status). 

Who is eligible for OPT? 
F1 students must have been lawfully enrolled on a full-time basis at a USCIS/DHS approved school for one full academic year before being eligible for OPT. Students in English language training are not eligible for OPT. 

Where can I use OPT? 
Students may engage in OPT for any employer for the duration of OPT authorized, as long as the employment qualifies under OPT standards. Training/work can be completed anywhere in the U.S. after the OPT EAD card is issued. 

How long does OPT last? 
Standard OPT is available for a cumulative maximum of 12 months per educational level. A one-time extension of 17 months (for a total of 29 months) is available to certain STEM degree recipients. 

How many hours per week can I work? 
Pre-completion OPT is limited to 20 hours per week while school is in session and the student still has coursework to complete. Full-time employment can be requested for pre-completion OPT done during official school breaks. 
For post-completion OPT, a student must be employed for at least 20 hours per week. Students requesting post-completion OPT may work 40 + hours per week.

Can I work anywhere? 
The job must be directly related to and commensurate with the level of the student’s course of study. Please see your academic advisor/professors for questions about which jobs will apply. It is very important that you can document that the job you accept is directly related to your field of study.

Getting From F1 to OPT to H1B Visa Status 
The goal of most International students after they graduate is to remain in the USA to gain work experience relevent to their degree studies. The H1B visa program is designed for and made available to F1 students to achieve this goal. The USCIS even introduced a seperate H1B quota (allocation of H1B visas) for International students.

F1 students can transfer / change status directly from F1 to H1B by obtaining a suitable H1B sponsorship position with an H1B sponsor company. However, many students choose (or find themselves requiring) to use the OPT visa program as an interim measure in the overall process of getting to H1B visa status. 

The H1B visa confers temporary worker status on the person who holds the visa. This visa is used to hire a foreign national who is a professional for a temporary period of time. H1B positions often appear at institutions of higher learning, but can be offered by any employer who needs the services of a person in a specialty occupation who holds at least a four-year degree or the equivalent in experience. Generally, three years of experience is equivalent to one year of education. 

H1B status is initially granted for a maximum period of three years, but it can be extended for up to six years. This six-year maximum remains in effect no matter how many employers the foreign national has over this time period. 
~ An H1B visa holder may also work part time. 

The important thing for the H1B applicant to show is that the employee will be earning the ‘prevailing wage’ for that position in that geographic location. Prevailing wage varies by geographic location and is determined by the county where the H1B worker will be working. 

Once the H1B visa is approved, the person can only work for the position stated on the H1B petition. If the person wishes to change employers, the new employer must file a new petition. An applicant may begin working for a new employer as soon as the new employer has filed their petition and subsequently received the official receipt from the USCIS. 

Since the H1B status is employment based, this status will immediately end if the employment is terminated. If the alien changes employers, the new employer must file, and the BCIS must have received, the new petition before the date of termination of employment. If the alien is unable to procure employment before termination, he must return to his or her country of origin. The original employer is obliged to pay the alien’s airfare back to his or her country, but this provision will not be enforced by the BCIS. This is considered a contract matter between the alien and the now former employer. 

Once a student finds an employer willing to sponsor him/her for an H1B visa, the petition can be filed. The USCIS offers expedited processing, known as Premium Processing for H1B cases. The USCIS guarantees review of the cases submitted within 15 calendar days of receipt of the application. This Premium Processing costs an additional $1000 in addition to the already steep filing fees of $1130, but it is in the person’s best interests to pay this extra fee. Without Premium Processing, adjudication of the application could take anywhere from six months to three years. 

In addition to the requirement that the employer pay the prevailing wage to the H1B visa holder and the responsibility for paying airfare home should the position be terminated, the employer is responsible for posting a Notice of H1B filing for ten days at each work site where the alien will work. The employer must also maintain all conditions in the Labor Condition Application and the petition, including payment of the stated salary. 

H1B petitions can be submitted up to six months prior to the date of employment in the case of new petitions. In the case of extensions of H1Bs, the petition should be filed within six months before expiration of the initial H1B visa as the process can take four to six months to complete. 

In order to receive approval for an H1B visa, the employer must first demonstrate to the USCIS that it will be paying the applicant at least 95% of the prevailing wage. This is demonstrated with the Labor Condition Application (“LCA”). The employer is also required to make certain attestations. These attestations include the fact that the employment of H1-B workers will not adversely affect the work conditions of U.S. workers, that when the LCA was filed, there was no strike, and that the H1B worker will be given a copy of the LCA. 

If the employer has over 50 employees, the employer is H1B dependent if at least 15% of the workforce is comprised of H1B visa holders. If the employer has 26-50 employees, the employer is H1B dependent if it employs more than 12 H1B workers. If the employer has 25 or fewer employers, the employer is H1B dependent if it employs more than 7 H1B workers. If the employer is H1B dependent, it has to make certain additional attestations not required by non-H1B dependent employers. 

The H1B dependent employer must attest that it has not and will not displace a United States worker during the period from 90 days before the H1B visa petition is filed until 90 days after it has been filed. The employer must also attest that it has taken good faith steps to recruit United States workers for the job and that they have offered it to any United States worker who applied that was at least as qualified as the H1B visa holder. 

Once approved, the LCA is valid for three years. Once the LCA is approved, the petition needs to establish that the employer has a legitimate need for a specialty occupation worker, that the position offered is a specialty occupation and that the applicant is qualified for the position. 

Newer and smaller companies may have a harder time establishing their need as the USCIS usually requires tax returns and payroll records in order to show that it is able to pay the applicant. 

Establishing that the position is a specialty occupation is generally straight-forward in the case of a graduate from an accredited United States institution of higher learning. Complications may arise when the position is not so easily categorized as a recognized specialty occupation for BCIS purposes. In a case where the nature of the position is not obvious, many types of evidence may be produced to establish that the position requires a person with a four-year degree. This may include evidence of past employees in this position with four-year degrees or evidence that similarly situated companies routinely hire persons with four-year degrees for this type of position. 

Establishing the qualifications of the alien should NOT be difficult in the case of a graduating F1 visa holder. By definition this person has been involved in a field of study at an accredited United States university and a Credential Evaluation will most likely not be necessary. An alien with only an Associate’s Degree may still be able to demonstrate that he or she is qualified for an H1-B visa if he or she also has six years of experience in the field. In a case such as this, a Credential Evaluation will be necessary. The attorney you hire can refer you to a Credential Evaluation firm. 

It is becoming commonplace since 9/11 for the USCIS to ask for additional evidence in most applications for any type of visa. For H1Bs, these Requests for Evidence (“RFEs”) have typically asked for the same sort of evidence. The BCIS will want to see a detailed description of the work done by the alien, including specific job duties, the percentage of time to be spent on each duty, the level of responsibility of the alien, hours per week of work, types of employees supervised and the minimum education, training, and experience necessary to do the job. The BCIS will also want the employer to explain why the work done requires the services of a person who has a college degree or its equivalent in the occupational field. |
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Typically, an H1B RFE will ask the employer to provide evidence of the position requirements in one of four ways: 
1. The employer can show that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry in the particular position for the petitioner’s industry by providing evidence that the petitioner and its competitors normally require a degree for the position offered. 
2. The employer may also offer evidence that the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree by providing evidence that the petitioner’s competitors normally require degrees for closely related positions. Or the petitioner may show a more detailed explanation of the duties. 
3. The employer may also offer evidence that this particular employer normally requires a degree or its equivalent for the position by providing employment histories including names and dates of employment of those employees with degrees previously in that position. 
4. The employer may also offer evidence that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher by showing a more detailed description of the duties. 
Once the employer has satisfied the BCIS that the position offered is a specialty occupation, that the alien has the qualifications, and that they are able and will be paying the prevailing wage, the H1-B is granted. At this point, the alien will be entitled to work for up to six years in the United States with this visa.