Meyner and Landis LLP Immigration Law Group
  • 26Jun

    In May 2012, the Department of Homeland Security (DHS) released an updated list of science, technology, engineering, and mathematics (STEM) degrees that qualify for a 17-month extension of the 12-month period of Optional Practical Training (OPT). Indeed, students whose most recent degree qualifies as one of the disciplines provided on the DHS’ recently updated list are now eligible for up to 29 months of OPT, provided all other conditions are met (described below).  This 17 month extension of the OPT period, in most cases, is good news for a qualifying employer, as such extension may postpone the need for such employer to file an H-1B petition for an OPT employee for one additional year.  It also presents an advantage to employers, when the U.S. economy is more robust and the demand for new H-1B numbers is so great that USCIS resorts to an H-1B filing-based “lottery” system.  In those years, this 17 month extension of the OPT period provides employers with two “bites at the apple” for the chance of an employee being selected in the H-1B lottery.

    This decision is part of the Obama Administration’s attempt to make the United States more competitive in the global race to attract those students whom are often referred to as our “best and the brightest”.  When taking a closer look at the updated list, one will note the addition of new disciplines, which may also suggest that the government has actually expanded its horizons, and is adjusting to the ever-changing needs of our market economy. The list now includes, among other disciplines, degrees in behavioral sciences, pharmaceutical studies, econometrics and quantitative methods studies, all of which are new disciplines to the STEM designation entirely.

    The DHS has also suggested that it may “grandfather” certain students by permitting students with STEM degrees to apply for the OPT extension even if their STEM degree is not their most recent degree. We can only hope this suggestion comes to fruition as it will allow more highly-qualified foreign students in these newly introduced disciplines to take advantage of the 17 month extension of OPT, which extension was otherwise unavailable upon their completion of that degree.

    However, until such a change is formally adopted by DHS, the requirements for the 17 month extension of the 12 month period of OPT remain as follows:

    1)    A qualifying student must apply (and be authorized for) an initial 12-month OPT authorization;

    2)    The qualifying student must be working for an employer that is registered with E-Verify;

    3)    The qualifying student must apply for the 17 month extension during the 12 month period of OPT (i.e., he/she cannot apply within the 60-day departure grace period). However, if the qualifying student timely applied for the extension and a decision remained pending at the time the initial OPT period expires; the student can extend his/her work authorization for up to 180 days.

    Also, if a sponsoring employer applies for the H-1B classification under the annual cap for an OPT candidate, that candidate may also take advantage of the “cap gap” measure, which measure allows F-1 students whose OPT expires prior to October 1 (the effective date of a cap-subject H-1B petition) to continue working for the employer (with valid work authorization) while the H-1B visa petition is pending review and/or following approval of the petition by USCIS.

    If you have any questions regarding eligibility for an OPT extension, E-Verify, or the H-1B cap gap measure, please feel free to contact us.

    Posted by Meyner and Landis @ 2:06 pm

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