Senators Request Longer OPT Time for Students
Posted Nov 16, 2007
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Nineteen U.S. senators sent a letter (PDF, 293KB), to Department of Homeland Security (DHS) Secretary Michael Chertoff on November 8, 2007, requesting an extension of the period of Optional Practical Training (OPT) given to a foreign student following his/her graduation from a U.S. university or institution of higher education. The current F-1 OPT period is 12 months; the senators' letter requested that this be increased to 29 months. The primary reason for this request is to facilitate the transition from student to H1B worker, and to address problems that have arisen from the insufficient H1B annual cap allotment. It is important that MurthyDotCom and MurthyBulletin readers understand that this is a proposal and NOT a change in the law at this time.
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H1B Quota Experience in FY2008 and Reason for Request
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The senators' letter explains the problem experienced during Fiscal Year (FY) 2008 with respect to the H1B cap. In FY2008, the USCIS received more cases on the very first day than the H1B cap permitted for the entire fiscal year. The first day for an eligible employer to submit an H1B cap-subject case for FY2008 was Monday, April 2, 2007. The USCIS continued to accept H1B petitions on April 3, 2007, because the regulations state that, if the H1B cap limit is reached on the first day cases are accepted, filings are allowed to continue on the second day. A random lottery then is held to determine which cases will be assigned the limited H1B cap numbers. In FY2008, about half of the cases filed on April 2nd and 3rd were rejected due to the shortfall of cap numbers. The USCIS was no longer able to accept any regular (not advanced-degree) H1B cap-subject cases on April 4, 2007.
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Many students are awarded degrees in May and June each year. For the most part, employers and potential employers of 2007 graduates, however, were unable to file H1B cases for these recent graduates. Students who had exhausted OPT during their studies were unable to remain in the U.S. to put their knowledge and skills to use in the workforce. The lack of H1B numbers also impacted 2006 graduates, who otherwise would have transitioned to H1B status in FY2007. Many of these individuals also could not obtain the coveted H1B cap numbers, and, as stated in the letter, they were lost to competing countries, while U.S. employers lost the investment they had made in these professionals.
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Request for Interim Solution to Extend OPT to 29 Months
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The senators are concerned that the lack of H1B cap numbers for professional workers is a threat to U.S. competitiveness. They state that the long-term solution must come from Congress, and they are committed to making this happen. In the interim, however, they are requesting that the DHS exercise its authority to change the regulations regarding F-1 OPT by extending the period from 12 to 29 months. This would allow students to more smoothly transition from school to OPT to H1B, based upon employer sponsorship.
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Thank the Senators Who Support this Measure!
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The letter was signed by a bi-partisan group of nineteen U.S. senators who deserve our gratitude. They include: Joseph Lieberman (D-CT), John Cornyn ( R-TX), Maria Cantwell (D-WA), Charles Schumer (D-NY), Daniel Inouye (D-HI), Orrin Hatch (R-UT), Robert Bennett (R- UT), Patty Murray (D-WA), Patrick Leahy (D-VT), Susan Collins (R-ME), Chuck Hagel (R-NE), Lamar Alexander (R-TN), John Kerry (D-MA), Daniel Akaka (D-HI), Gordon Smith ( R-OR), and Mary Landrieu (D-LA).
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Conclusion
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This proposed change would go a long way towards bridging the "cap gap." The cap gap is the time between the expiration of the OPT (and the 60-day grace period) and the start of the new USCIS fiscal year on October 1st. The H1B start date cannot be earlier than October 1st in cap-subject cases and, if the OPT and grace period expire before that time, the foreign national has a problem living and working legally in the U.S. due to a gap in status.
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The proposed 29-month timeframe also would permit employers to try to obtain cap numbers during two successive cap years, thus increasing their chances of successful H1B petitions for their foreign national employees. While the H1B cap needs to be increased for the future, the 29-month OPT would be a good interim remedy. Additionally, even if the quota is increased, it may be needed if the demand still exceeds the quota, and cap-gap issues continue.