Work Authorization for F-1 Visa Holders Increased to 29 Months

By J.J. Smith Apr 9, 2008

Foreign students who graduate from U.S. universities with math, engineering or science degrees can now work in the United States for up to 29 months following graduation, says a new Department of Homeland Security (DHS) rule.

The new regulation—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 Pending H-1B Petitions—took effect April 8, 2008, the day it was posted on the Federal Register.

Under the new rule, certain F-1 visa holders who have completed a science, technology, engineering or mathematics (STEM) degree and who are offered a position with a U.S. employer can work for that employer for up to 29 months under DHS’ “optional practical training” (OPT) program. The old regulation limited STEM graduates to 12 months of employment by U.S. companies, but the new rule increases the OPT program by 17 months provided the employer is enrolled in the U.S. Citizenship and Immigration Services’ (USCIS) E-Verify employment verification program, the rule says.

In addition, an F-1 visa holder who has graduated and who an employer has filed an H-1B visa petition for, will receive an automatic extension, along with any grant of OPT work authorization, until Oct. 1 of the federal fiscal year for which the H-1B visa is being requested, the regulation says. The extension is to allow F-1 visa holders whose OPT will expire before the start date of a petition filed under the H-1B visa cap to remain in the United States and work through the beginning of an anticipated H-1B visa employment start date of Oct. 1. Graduating F-1 visa holders who do not have OPT work authorization but for whom an employer has filed an H-1B visa application will still have their lawful status automatically extended, but those visa holders will not be authorized to work until the H-1B petition takes effect, the rule says. All the automatic extensions of status for F-1 visa holders also apply to dependents holding F-2 visas. But if the H-1B visa petition filed on behalf of the F-1 visa holder is rejected, denied or revoked, the automatic extension of status and work authorization will terminate immediately, the rule says.

OPT Granted in Stages

Under the new rule, the OPT work authorization is granted to STEM graduates in stages, with the first work authorization granted for 12 months after graduation—which must be exercised within 14 months of commencement—followed by a single 17-month extension of OPT. Once the OPT extension has been granted, the graduate will not be entitled to another OPT extension even if the F-1 visa holder completes another STEM degree program, the rule says.

Prior to recommending the 17-month OPT extension, a school official must certify that the graduate’s degree is a bachelor’s, master’s or doctorate degree with a code that is on DHS’ STEM “designated degree program list.” The courses of study on the list are actuarial science, computer science (except data entry/microcomputer applications), engineering, engineering technologies, biological and biomedical sciences, mathematics and statistics, military technologies, physical sciences, science technologies and medical scientist. DHS may add degrees to the STEM list and will accept recommendations for inclusion of additional degrees to the list, the agency says.

Despite taking effect immediately, the new regulation is “an interim final rule” that is open to public comment until June 9, 2008. Comments on the rule must include the agency name and Department of Homeland Security docket number ICEB-2008-0002. Comments may be submitted using the following methods:

    • Online at the Federal Rulemaking Portal: Follow the instructions for submitting comments.

    • U.S. Postal Service: Send to Office of Policy, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 425 I Street, N.W., Room 7257, Washington, D.C. 20536.

    • Hand Delivery/Courier: The address for sending comments by hand delivery or courier is the same as that for submitting comments by mail. Contact telephone number is (202) 514-8693.

    • Fax: Comments may be submitted by fax at (866) 466-5370.

J.J. Smith is manager of SHRM Online’s Global HR Focus Area.

Related Resource:

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 Pending H-1B Petitions, Federal Register Notice


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