SEVP Updated Policy Guidance on OPT Matters
Posted May 08, 2009
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The Student and Exchange Visitor Program (SEVP) has recently issued an updated policy guidance (PDF 445KB) on Optional Practical Training (OPT) issues. As reported in our June 20, 2008 MurthyBulletin article, SEVP Guidance on Length of Cap-Gap Extension for Eligible OPT Students, the original policy guidance was issued in the spring of 2008 to clarify the F-1 Interim Final Rule on OPT, which went into effect on April 8, 2008. Since that time, new questions have arisen regarding the interpretation of the OPT rule. Thus, SEVP has provided further guidance. The most notable additions to the SEVP interpretation of the OPT rule of April 8, 2008 are summarized here for MurthyDotCom and MurthyBulletin readers.
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Authorized Employment Dates for Post-Completion OPT
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In the updated policy guidance, it was confirmed by SEVP that the start date of OPT is either the requested start date or the date of approval, whichever is later. This can be no later than 60 days after the program end date. However, SEVP clarified that, "If USCIS adjudicates the Form I-765 after the requested start date, the end date will be extended to reflect the later start date." This should give many OPT applicants the full length of the requested OPT authorization for which they are eligible, even if USCIS is not able to adjudicate the application by the requested start date.
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Pre-Completion v. Post-Completion OPT
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As regular MurthyDotCom and MurthyBulletin readers know, the new OPT rule distinguishes between pre-completion and post-completion OPT. If a student applies for and receives authorization for pre-completion OPT, but completes his or her program of study earlier than planned, SEVP advises that the pre-completion OPT ends on the program end date. However, such a student would be eligible to apply for post-completion OPT for any remaining unused OPT time and would not lose the pre-completion time that had been approved, but not used.
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In the case of prior authorization for part-time pre-completion OPT, the reduction in the amount of post-completion OPT is adjusted accordingly. To illustrate this, SEVP provides an example in which "the six months of part-time OPT used by the student [prior to graduation] would account for three months of the total amount available at that education level."
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Options if Program is Completed Except for Thesis / Dissertation
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A situation frequently on the minds of Murthy Law Firm clients is when the student completes his or her program requirements, aside from the thesis or dissertation. In this case, a student may choose whether to apply for pre-completion or post-completion OPT. The pre-completion OPT authorization would have the advantage of allowing the student to work full-time without being subject to the maximum period of unemployment provisions, and s/he would be able to receive a program extension. However, this individual would not be eligible to apply for the 17-month STEM extension and/or be eligible for the H1B cap-gap extension of OPT.
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Should a student in this scenario receive the post-completion OPT authorization, s/he can still work full time and be eligible for the cap-gap, or 17-month, STEM extension. However, s/he would be subject to the unemployment provisions and unable to receive an extension of his or her program. Students who intend to apply for OPT after the completion of their program requirements, but who still have to complete their theses or dissertations, should carefully consider all pros and cons applicable to their situations before deciding whether to apply for pre-completion or post-completion OPTs.
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Periods of Unemployment
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Another question commonly asked by students is what counts toward the maximum 90 or 120 days of unemployment during the OPT authorization period. According to SEVP, all calendar days (including weekends) count toward the 90/120-day maximum of unemployment during all periods when "the student does not have qualifying employment." However, periods of up to ten days between different employments do not count toward the maximum unemployment. In addition, the student has up to ten days after the start date, as noted on the EAD card.
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Sometimes, the USCIS online case status shows that an EAD has been issued though it is not received because it was lost in the mail. In this case, the student is instructed to apply for a replacement card and "[t]he clock for unemployment [begins] 10 days after issuance of the replacement EAD by USCIS."
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SEVP also confirms that, when a student travels outside of the U.S. during his/her OPT authorization; the general rule is that travel time counts as unemployment. This general rule does not apply when the student travels while still employed and the employer authorizes the leave of absence, or when the student's travel is part of her/his employment.
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SEVP clarifies that schools are not responsible for making sure students do not exceed maximum unemployment limits and that a student is considered in status as long as the SEVIS record remains active. Calculating periods of unemployment is the sole responsibility of the U.S. Department of Homeland Security (DHS).
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STEM Employment
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Previously, SEVP advised that any student authorized for OPT STEM extension must work at least 20 hours per week for an E-Verify employer or multiple E-Verify employers. SEVP further clarified in the updated guidance that other types of employment, such as work for hire as a contractor, self-employed business owner, or through an employment agency or consulting firm, could also be considered as valid employment during the STEM authorization, provided the student performs services for an E-Verify business entity. This is permissible even if the E-Verify business entity is the student’s own business.
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H1B Cap Gap in 2009 / FY2010
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SEVP provided current triggering events, which determine the length of the cap-gap relief for FY2010. According to these guidelines, any H1B petition properly filed during the student's OPT authorization period automatically extends the OPT period until June 1, 2009, with the extension of status until July 31, 2009. If the petition is not receipted (normally due to cap issues), there is no additional extension. Those whose petitions have been receipted will have their OPT authorizations together with their F-1 statuses extended until September 30, 2009. If a petition is withdrawn or denied prior to September 30, 2009, the OPT authorization ends ten days after the date of the withdrawal or denial, and that student has 60 days of grace period in F-1 status thereafter.
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Conclusion
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OPT rules are quite complex and require a thorough understanding in order to assure that the student does not inadvertently fall out of status and/or become ineligible for an important benefit to which s/he may be entitled otherwise. Anyone affected by these rules should carefully study them, consulting with a knowledgeable immigration attorney when needed, before making important decisions that may lay the foundation for one's future life and career.