The New OPT Rule and the DSO

Greg Siskind (gsiskind@visalaw.com)

901-682-6455

www.visalaw.com

August 1, 2008

E-Verify• Formerly called the Basic Pilot Program

• Free, Internet-based system to confirm the legal status of newly hired employees

• Created as part of the 1996 Act

• Compares SS# and DHS immigration databases to the employee’s name and other Form I-9 information

• Takes 3 to 5 seconds to process

Benefits of E-Verify Participation• Reduces significantly likelihood of being

targeted for enforcement, though it is not a safe harbor

• States may provide safe harbor under their rules (e.g. Tennessee)

• Reduces likelihood of getting SSA no match letters (though private companies can provide this service)

• Reduces likelihood of identity theft in some cases

Risks of E-Verify Participation• Presumption of knowingly hiring an unauthorized

worker if employment continues after final non-confirmation notice

• Inaccuracies a big problem (Westat report – 8% false positives (though this is much improved))

• Must permit DHS and SSA inspections• If you change your mind, you have to continue

using program for 30 days after giving written notice

Two Big Changes on 4/18• students with degrees in certain STEM fields

may apply for extensions of their OPT by an additional 17 months if their employers participate in E-Verify;

• any student on OPT seeking a change of status to H-1B status may receive an automatic extension of status and employment authorization until H-1B time starts on October 1st or when the H-1B application is denied.

Two Smaller Changes on 4/18• Unemployment for 90 days can render a student

on 12 month OPT out of status; 120 days for STEM OPTs

• Students must apply for post-completion OPT up to 90 days before or 60 days afterward

The Role of the DSO• Student must get DSO recommendation to

qualify for extension• DSO annotates SEVIS when extension

approved• Employers must report student’s leaving within

48 hours (employers shall consider student departed when the employer knows the student has left of the student has not shown up for 5 business days without the employer’s consent)

The Role of the DSO (cont.)• Student seeking STEM extension must agree to report

within 10 days:

- changes to the student’s name

- the student’s residential and mailing address

- the student’s employer

- the name and address of the student’s employer• The student must also check in with the school every six

months from the date the STEM extension starts (you can set up e-reporting)

• School must keep records of all such reports

What are the STEM professions?

• STEM stands for science, technology, engineering and math. USCIS will refer to a “STEM Designated Degree Program List” that is based on the US Department of Education’s “Classification of Instructional Programs” (CIP) 2000 report which can be found online at http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2002165

• ICE may add occupations (big push for health care occupations) • Does not apply to minors• Dual majors work if one is a STEM and work is in the STEM field

How does a student request the extra 17 months of OPT?

• The student requests the extra OPT from DSO who verifies student’s degree is in STEM field and then makes recommendation to extend OPT in SEVIS

• After DOS recommends extension in SEVIS, the DSO issues a new I-20 and the student files a Form I-765 and filing fee to USCIS

Is there still a grace period when the STEM extension is over?

Yes. A 60 day grace period applies after the OPT employment authorization expires.

What if the work is not in a STEM field?

What if the student has OPT to work in a field for a degree that is not a STEM profession, but the student has a previously issued degree in a STEM occupation?

The degree that is the basis for the student’s current period of OPT must be a bachelor’s, master’s, or doctoral degree in one of the degree programs on the current STEM Designated Degree Program List. Also, the degree that is the subject of OPT must be in STEM field.

What happens if an EAD card expires while awaiting the 17 month extension?

The new rule automatically extends EADs for 180 days for students with pending requests for extension of post-completion OPT while USCIS adjudicates the request for extension.

Does the employer verify the OPT student in E-Verify after it signs up in order to continue

employing the student?

No. E-Verify is only used to verify new employees. An existing employee – in this case the F-1 student working on OPT – is not to be verified in E-Verified. If an employer has E-Verify in place when a student begins employment, the student would be run through the system.

What if a company is only using E-Verify at some locations but not all (including the location where the student is working)?

The rule only states that an employer must be registered and using Everify. It does not state that E-Verify must be used company-wide and the E-Verify rules permit a company to use the system at some locations as opposed to all. However, USCIS has clarified that E-Verify must be used at the location where the student is working.

How does the “cap gap” rule work?

• The new rule extends the authorized period of stay as well as work authorization 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 1st of the fiscal year for which the H-1B is requested. The old rule only allowed for an extension of F-1 status, but the new rule extends both status and employment authorization.

How does the “cap gap” rule work? (cont.)

• The extension of status and work authorization terminates on October 1st of the fiscal year for which the H-1B is requested. Unlike the prior cap-gap rule, USCIS need not first issue a notice that the cap has been hit. USCIS assumes the cap is always going to be hit before October 1st so the extension will now be automatic.

• The old rule only allowed for an extension of F-1 status, but the new rule extends both status and employment authorization.

What does the student show for I-9 purposes?

• The DSO issues a “cap gap” I-20 which is now generated by SEVIS to account for H-1B filing, selection and adjudication.

• Student presents expired EAD, the cap gap I-20 and the USCIS H-1B receipt notice

• Section 3 on reverification will show the expiration date of the cap gap I-20 (not later than September 20th).

What if the student applied for consular processing?

USCIS will allow cases to be converted to change of status by sending a request within 30 days of the H-1B approval to a designated email address at each of the service centers.

What if post-completion OPT is completed before April 1st and the student is in the 60 day

grace period?

The student gets an automatic extension of status if the H-1B is timely filed, but the employment authorization would not be extended.

What if the student finds the H-1B application was denied?

• The automatic extension of F-1 status and employment authorization immediately terminates upon the rejection, denial, or revocation of the H-1B petition.

• The student will, however, be eligible for the 60 day F-1 grace period from the date of the denial of the H-1B.

Does the “cap-gap” rule apply to STEM professionals only?

No. Only the 17 month extension provision of the new rule applies to STEM professionals. Any OPT holder can qualify for the cap-gap extension provision.

May students travel during the cap gap extension period and return in F-1 status?

“The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired EAD issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence. By definition, however, the EAD of an F-1 student covered under a cap gap extension is necessarily expired. As a result, if the student elects to travel outside the United States during a cap gap extension, he/she should be prepared to apply for an H-1B visa at a consular post abroad prior to returning. Because the H-1B petition is for an October 1 start date, the student should be prepared to adjust his/her travel plans, accordingly.”

Are F-2 students extended as well under the “cap-gap” rule?

Yes. F-2s are automatically extended as long as the F-1’s status is.

What change does the new rule make with respect to the timing of filing an initial OPT

application?

Prior to this rule being issued, students must have applied for post-completion OPT prior to completing their coursework. The new rule allows students to apply for post-completion OPT up to 90 days before program end date and for 60 days afterwards.

What does the rule change with respect to the unemployment of OPT students?

The rule imposes for the first time a limit on unemployment. Students on 12 month OPT may only have an aggregate maximum period of unemployment of 90 days. That period increases by 30 days for F-1 students in the 17 month extension period. The 90 day rule applies during the cap gap extension period.