Foreign students in F-1 nonimmigrant status who have been enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary certified by U.S. Immigration and Custom Enforcement's (ICE's) Student and Exchange Visitor Program (SEVP) are eligible for 12 months of optional practical training (OPT) to work for a U.S. employer in a job directly related to the student's major area of study. On April 8, 2008, the Department of Homeland Security (DHS) published an interim rule which provides new regulations regarding OPT.

1. The interim rule extends the maximum period of OPT from 12 months to 29 months for F-1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment verification program.

     This interim rule will allow F-1 students who have received a degree in a STEM field to obtain an extension of their existing post-completion OPT period for up to 17 months, for a maximum period of post-completion OPT of 29 months. The extension, however, is only available to students who are employed, or will be employed, by an employer enrolled (and determined by USCIS to be in good standing) in USCIS' E-Verify employment verification program at the time the student applies for the 17-month extension.

     The student's degree, as shown in the Student and Exchange Visitor Information System (SEVIS), must be a bachelor's, master's, or doctorate degree with a degree code that is on the current STEM Designated Degree Program List, which includes:

• Actuarial Science: NCES CIP Code 52.1304.
• Computer Science: NCES CIP Codes 11.xxxx (except Data Entry/Microcomputer Applications) and NCES CIP Codes 11.06xx
• Engineering: NCES CIP Codes 14.xxxx.
• Engineering Technologies: NCES CIP Codes 15.xxxx.
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx.
• Mathematics and Statistics: NCES CIP Codes 27.xxxx.
• Military Technologies: NCES CIP Codes 29.xxxx.
• Physical Sciences: NCES CIP Codes 40.xxxx.
• Science Technologies: NCES CIP Codes 41.xxxx.
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

   You may visit http://nces.ed.gov/pubs2002/cip2000/ to check whether your major area of study is included in this program.

     A student seeking an extension must agree to report to the student's designated school official (DSO) within 10 days of change in the following: changes to the student's name, the student's residential and mailing address, the student's employer, and the address of the student's employer. The student must also report to a DSO every six months from the date the OPT extension starts to verify this information. In addition, the employer of a student under extended OPT must report to the student's school DSO within 48 hours after the student leaves employment with that employer. The DSO must report all of this information in Student and Exchange Visitor Information System (SEVIS).

2. The interim rule also extends the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request (filed under the cap for the next fiscal year) pending with USCIS.

     Though the USCIS has already authorized to extend the status of F-1 students caught in a cap-gap between graduation and the start date on his or her approved H-1B petition, such regulations are not effective to solve the cap-gap problem because, before USCIS can offer students any relief from the cap-gap, it must first determine that the cap has been reached for the current fiscal year, or is likely to be reached prior to the end of the current fiscal year, and then publish a notice in the Federal Register announcing that status is extended for students with pending H-1B petitions. However, the existing regulations do not take into account the fact that the H-1B category is now oversubscribed to such a degree that USCIS' final receipt date for petitions is now announced even before the start of the fiscal year for which the petitions are being submitted and, in the absence of an expansion of the 65,000 cap by Congress, this state of affairs will likely continue indefinitely.

     This interim rule amends USCIS procedures by eliminating the limitation that cap gap relief be authorized only when the H-1B cap is likely to be reached prior to the end of the current fiscal year and removing the requirement that USCIS issue a Federal Register notice. Instead, this rule automatically extends the authorized period of stay (whether or not in OPT), and employment authorization (if in OPT) of any F-1 student who is the beneficiary of a timely- filed H-1B petition that has been granted by, or remains pending with, USCIS. The extension of status and work authorization terminates on October 1 of the fiscal year for which the H-1B visa has been requested, so that there is no cap-gap problem.

     This interim rule also implements a programmatic change to allow students to apply for OPT within 60 days of concluding their studies.

3. The interim rule specifies an aggregate maximum allowed period of unemployment of 90 days for students on 12-month OPT, or 120 days for F-1 students who have an approved 17- month OPT period.

     Though DHS had defined the period of an F-1 student's status as the time the student is pursuing a full course of study at an SEVP-certified school or engaging in authorized post-completion OPT, they do not specify how much time the student may be unemployed, making it difficult to determine when an unemployed student on post-completion OPT violates the requirements for remaining in F-1 status. As status during OPT is based on the premise that the F-1 student is working, the new interim rule states students may not accrue an aggregate of more than 90 days of unemployment during any post-completion OPT carried out under the initial post-completion OPT authorization. Students granted a 17-month OPT extension may not accrue an aggregate of more than 120 days of unemployment during the total OPT period comprising any post-completion OPT carried out under the initial post-completion OPT authorization and the subsequent 17- month extension period. In addition to clarifying the student's status, this measure allows time for job searches or a break when switching employers.

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