Updates – 4/23/2008
During a teleconference on April 17, 2008 with NAFSA, SEVP and USCIS
representatives provided some guidance on the new OPT rule.
Please note: These answers were verbal and are subject to change. SEVP and
USCIS iterated plans to provide further written answers to these and other
questions submitted, including additional information in the form of DSO
Operating Instructions.
Applying for Regular OPT
For post-completion OPT, a student may file an I-765 with USCIS up to 90 days
before being enrolled for a full academic year.
For pre-completion OPT, a student may file an I-765 with USCIS up to 120
days before the proposed OPT date if s/he has completed a full academic
year.
Note: If the student has not completed a full academic year, the student may
only file the I-765 for pre-completion OPT up to 90 days before the end of the
full academic year.
If an I-765 is submitted before the window allowed for that type of OPT, the
I-765 will be denied and the fee will not be returned.
The new rule also applies to students who were already within their grace
period as of April 8, 2008 (whose program end date was between 02/08/08 and
04/07/08).
Although it is now permitted by regulation, SEVIS is not yet programmed to
allow the DSO to update SEVIS with an OPT recommendation during the 60-day
grace period. See the NAFSA Practice Advisory Applying for OPT during the 60
Day Grace Period for information on a work-around.
Cap Gap Provisions
The new rule granting "cap-gap" extensions to F-1 students who applied for a FY
09 H-1B number limits the cap-gap extension to beneficiaries of H-1B petitions
who requested change of status. Since the cap-gap rule was published after the
FY 09 H-1B filing season opened, however, many beneficiaries had applied for
consular notification rather than change of status, following guidance
applicable under the prior rule. To address this, USCIS developed a policy that
allows the petitioning employer to convert "consular processing" requests to
"change of status," so that the beneficiary can benefit from the new cap-gap
provision. Employers must make such requests within 30 days of the issuance of
the petition receipt notice, by e-mailing the Service Center handling the
petition. See the USCIS notice for further details.
USCIS has confirmed that employers may use the same process to convert
either pending or approved consular processing petitions to change of status in
USCIS Process To Convert Consular Notification Request To Change Of Status for
Cap-Gap Eligibles
The extension for "cap gap" status and work authorization officially
commences on the date of filing the H-1B (the date received by USCIS), not the
receipt date.
If a student's program end date was before the filing of an H-1B petition on
April 1, 2008, but s/he is still within the 60 day grace period as of April 8,
2008, the student's F-1 status would be extended under this provision. However,
it is not clear whether the expired work authorization would be revived. USCIS
and SEVP are consulting with counsel.
For a student who is the beneficiary of an H-1B petition for a cap exempt
(higher education) employer, USCIS will likely NOT recognize that s/he is
eligible for the extension of status & work authorization under the cap gap
provision of this rule. The rationale is that a cap exempt employer can choose
a start date that matches the end of authorized F-1 status or work
authorization. USCIS and SEVP are consulting with counsel.
The automatic extension terminates when USCIS rejects, denies, or revokes
the H-1B petition. However, the student would have a grace period after the
termination during which s/he is authorized to remain in the United States for
up to 60 days to prepare for departure from US, change degree level, transfer,
change status, etc. as long as the student has not otherwise violated
status.
USCIS and SEVP are developing a policy regarding documentation that would
prove that a student's status and authorization have been extended. Most
likely, it will involve a SEVIS data fix with notation on the I-20, e.g. "F-1
status and work authorization extended to (insert date)."
Eligibility for 17-month STEM OPT Extension
The 17-month extension is only possible one time per lifetime; a student is NOT
eligible to receive an extension more than once, regardless of degree level.
The extension can only be granted in one 17 month period; the period cannot be
"split" into 2 periods.
Students on "pre-completion" OPT will NOT be eligible for the extension.
For a student who applied for "pre-completion" OPT after finishing all
course requirements but before being conferred the degree, and then continued
the OPT after the program end date, SEVP will consider for a limited time
allowing a data fix of the program end date so that these students will be
considered "post-completion" in SEVIS.
USCIS will determine whether a student's degree is eligible for the STEM
extension by ensuring that the CIP code listed on the I-765 and/or the I-20 is
one of the fields listed in the DHS STEM list.
When asked to list the degree in item #17 of the Form I-765, the student
should list the major as it appears in SEVIS and on the I-20 (i.e. the name
associated with the eligible CIP code), not the name used by the institution.
Note: the I-20 only lists the primary major. If the STEM major is the student's
secondary major: DSO should handwrite on the I-20 "Secondary major CIP code:
(list CIP code), (title of major as it appears in SEVIS)". Student needs to
include documentation of the major that relates to the CIP code which qualifies
the individual for the extension.
Since the employment must directly relate to the STEM field, it is
recommended that the student include a statement from the employer regarding
how the employment relates to the STEM field.
The student does not need to provide any documentation that an employer is
an E-Verify employer; the only thing required for the I-765 is the employer's
E-Verify number and name as listed in E-Verify.
There has been some confusion surrounding a statement in the supplementary
information to the rule that "only new hires can be verified in E-Verify once
an employer registers with the program." USCIS confirmed that this does not
mean that a current OPT employer would have to "fire and re-hire" a student
employee, but just that the student would not have to be "verified" again
through E-verify, as long as the employer follows the normal I-9
obligations.
Applying for the 17-month STEM OPT Extension
A new Form I-765 is now required, and is available on the USCIS Web site at
www.uscis.gov/I-765. The prior version of the form will be accepted only
through May 8, 2008. The form and instructions have been changed to implement
the new OPT regulations.
Changes include:
The eligibility code for an F-1 student seeking optional practical training
(OPT) has been changed. The eligibility code (c)(3)(i) will no longer be used
and has been replaced with the following three codes: (c)(3)(A) for
pre-completion OPT, (c)(3)(B) for post-completion OPT, and (c)(3)(C) for a
17-month STEM OPT extension.
Item 17 asks for information needed to process applications for the 17-month
STEM OPT extension, including spaces for the degree conferred and the
employer's E-Verify Company or Client Identification Number.
The student should file the I-765 with the USCIS Service Center with
jurisdiction over the address where the student currently resides, not where
the first I-765 for regular OPT was filed.
A student may apply for the 17-month STEM OPT extension anytime during the
regular period of post-completion OPT up to the expiration date of the
student's current OPT employment authorization. Students are encouraged to file
early so that they receive the new EAD before the end of the regular period of
post-completion OPT.
The new I-765 instructions state that a "copy of the degree" must be
submitted for applications filed under (c)(3)(C). USCIS clarified that this
could include:
o Official transcripts
o Unofficial transcripts
o Copy of the diploma as long as it states the program of study
Changing Employers on a 17-month Extension
A student may change employers during the 17 month extension. However, USCIS
and SEVP advise against changing employers while the I-765 is pending, since
the I-765 names a specific employer. Note: Students are advised to consult with
an attorney regarding the effect of changing to an employer that is not the
employer named on the I-765.
The student must report the change in employer to the DSO, and the DSO must
update SEVIS accordingly.
Students may NOT be concurrently employed at a non-E-verify employer. While
on a 17-month extension, the student is only allowed to be employed by
employers who are registered with E-verify.
DSO Responsibilities for Students with "Cap Gap" Extension
DSOs will have the same responsibilities toward students with "cap gap"
extensions.
SEVP and USCIS are looking into ways to notify a DSO that a student is an
intended beneficiary of an H-1B petition and eligible for the "automatic
extension."
Under the cap gap extension, the student may work for any employer, including
(but not limited to):
o the same employer as s/he had under the prior OPT authorization,
o the employer who filed the H-1B petition for the 2009 fiscal year with an
expected start date of 10/1/2008.
Documentation of Status/Authorization
Since neither the I-20 nor EAD card will reflect the "automatically extended"
status and/or work authorization of F-1 students who are intended beneficiaries
of pending H-1B, SEVP and USCIS are looking into documentation to facilitate
travel, driver's license renewal, completion of the I-9, and other processes
that require proof of status and work authorization. Most likely, SEVP will
create a temporary solution with a notation on the student's I-20.
Unemployment Provisions
SEVP confirmed that the unemployment provisions of the regulation do not apply
to any periods of unemployment before the effective date April 8, 2008. The 90
day "clock" starts on April 8, 2008.
Students should be advised that more than 90 days of unemployment after
April 8, 2008 may affect eligibility for future benefits. If the student
applies for a benefit and has more than 90 days of unemployment AFTER April 8,
2008, the benefit may be denied because of that unemployment. A student may
provide documentation for the adjudicator to consider any extenuating
circumstances. Note: SEVP stated that it is not looking to systematically put
students out of status who were already on OPT prior to the effective date of
April 8, 2008.
Unemployment provisions do NOT apply to students on pre-completion OPT who
are maintaining full-time enrollment and are still pursuing their studies.
SEVP indicated that days of unemployment will be counted from either the
start date requested (no later than 60 days after program end date) or the date
the employment authorization is adjudicated, whichever is later. SEVP further
indicated that ICE may consider tolling the days for those students whose EAD
was approved but not received (e.g. lost in the mail). For example, if a
student has to re-apply for a duplicate EAD because the first was lost in the
mail, ICE may take into account the date the duplicate EAD was issued.
Regarding unpaid employment, SEVP said:
o For regular post-completion OPT, the employment does NOT have to paid
employment. Therefore, a student who is self-employed (including performance
majors with regular "gigs"), interning or volunteering in a position directly
related to the academic field would be considered "employed" for the purposes
of OPT employment.
o For the 17-month STEM extension, employment must be traditional paid
employment.
April 8, 2008
New regulatory changes to Optional Practical Training (OPT) work benefit
allowed to F-1 students in the U.S.
Regulatory changes to F-1 Student Optional Practical Training (OPT)
work
The Department of Homeland Security published a new regulation that
significantly changes the OPT work benefit allowed to F-1 students in the
U.S. While we are still awaiting clarification to the many questions this
rule raises, a summary of the changes are listed below. We will be
holding an Information / Update session for current students, on Thursday,
April 10th, 2008, at 5:30pm in Dartmouth Hall, room 105.
Please monitor our "International Immigration" blitz bulletin for details.
There are effectively five parts to the rule:
1) General changes to OPT application
procedures and duration:
a. I-765 filing window:
Under the current rule, the I-765 must be filed no later than the student's
program end date, and it is not specified how soon before the program end date
the application can be filed. Under the new rule effective April 8, 2008, a
student will be able to file his or her I-765 up to 90 days prior to his or her
program end date, and up to 60 days after his or her program end date.
b. Duration of employment
authorization: Employment authorization will begin on the date
requested or the date the employment authorization is adjudicated, whichever is
later. Exception: The employment authorization period for the
17-month OPT extension begins on the day after the expiration of the initial
post-completion OPT employment authorization, and ends 17 months later,
regardless of the date the actual extension is approved.
2) OPT extension
application is possible for STEM (Science, Technology, Engineering & Math)
students employed by certain employers:
a. The 12 month limit on F-1 Optional
Practical Training (OPT) will be extended by 17 months, for a total of 29
months, for certain STEM degree holders (Science, Technology, Engineering,
Mathematics) in the following fields:
i.
Actuarial Science.
ii.
Computer Science Applications:
*(except
Data Entry/Microcomputer Applications)
iii. Engineering.
iv.
Engineering Technologies.
v.
Biological and Biomedical Sciences.
vi.
Mathematics and Statistics.
vii.
Military Technologies.
viii.
Physical Sciences.
ix.
Science Technologies.
x.
Medical Scientist (MS, PhD).
b. Other requirements for 17-month
extension:
i.
Student must be currently participating in a 12-month period of OPT, working
for a U.S. employer in a job directly related to the student's major area of
study.
ii.
Student must have successfully completed a bachelor's, Master's, or Doctoral
degree in a field on the DHS STEM Designated Degree Program List, from a
SEVIS-certified college or university.
iii.
Student must have a job offer from an employer registered with the
E-Verify employment verification system. See also:
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD
AND http://www.uscis.gov/files/nativedocuments/E-Verify_Manual.pdf
iv.
The revised form I-765 application form will have additional fields under a new
#17 for:
1.
Education level and major field of study. Note: the student will also need to
submit a copy of the conferred degree with the application. However, the
student will not need to include CIP code on the I-765 as the CIP code will be
reflected on the student's new I-20 following the DSO's recommendation for
extension.
2.
Employer name as listed in E-Verify
3.
E-Verify company identification number of employer (or E-Verify client company
identification number of the employer's agent)
v.
The student has not previously received a 17-month OPT extension after earning
a STEM degree.
vi.
Student will have to apply for the 17-month extension on Form I-765 with
fee.
vii.
Students who timely file an application for the 17-month OPT extension will be
able to continue employment while the extension application is pending, until a
final decision on the I-765 or for 180 days, whichever comes first.
viii.
The employer must agree to report the termination or departure of the student
to the DSO or through "any other means or process identified by DHS." An
employer must consider a worker to have departed when the employer knows the
student has left employment, or if the student has not reported for work for a
period of 5 consecutive business days without the employer's consent.
3) H-1B cap-gap
extension of D/S and work authorization until October 1:
a. Duration of status and work
authorization will be extended for a student approved for OPT, who is the
beneficiary of a timely-filed H-1B petition requesting an employment start date
of October 1 of the following fiscal year. This would apply to all students on
OPT, not just STEM students. The extension of duration of status and work
authorization would automatically terminate upon the rejection, denial, or
revocation of the H-1B petition filed on the student's behalf.
b. The conditions that must be met for
this auto-extension of status and work authorization include:
i. The student is the beneficiary of an H-1B
petition filed before the end of the student's lawful F-1 status;
ii.
The H-1B petition requests a change of status with an effective date of October
1 of the following fiscal year;
iii.
The F-1 student has not violated the terms and conditions of that status;
and
iv.
The H-1B petition is not rejected, denied or revoked.
c. Employers should note that this
extension is automatic (by operation of regulation) when the conditions are
met, so that no new Employment Authorization Document is required for I-9
purposes. Again, this extension applies to all F-1s selected to receive
an H-1B for the following fiscal year, whether the F-1 works in a science,
technology, engineering or mathematics field or not. The extension of
status also covers the student's spouse and children in F-2 status.
4) Reporting
Requirements while on OPT:
a. All students on OPT are required to
report to the DSO:
i.
any change of name or address, or
ii.
any interruption of such employment
b. In addition, students with an
approved 17-month OPT extension:
i.
Must report to the student's DSO within 10 days of any change of:
1.
legal name
2.
residential or mailing address
3.
employer name
4.
employer address, and/or
5.
loss of employment
c. Must make a validation report to the
DSO every six months starting from the date the extension begins and ending
when the student's F-1 status ends, the student changes educational levels at
the same school, the student transfers to another school, or the 17-month OPT
extension ends, whichever is first. The validation is a confirmation that the
student's name and address, employer name and address, and/or loss of
employment is current and accurate. The report is due to the DSO within 10
business days of each reporting date.
5) Limited Periods of Unemployment to
Maintain Status: During post-completion OPT, F-1 status is
dependent upon employment.
a. Students may not accrue an aggregate
of more than 90 days of unemployment during any post-completion OPT carried out
under the initial post-completion OPT authorization.
b. Students granted a 17-month OPT
extension may not accrue an aggregate of more than 120 days of unemployment
during the total 29 month OPT period.
*******************************************************************************************************
December 13, 2007
Application Fees for Non-Immigrant Visas to Increase On January 1,
2008
Effective January 1, 2008, the application fee
for a U.S. non-immigrant visa will increase from $100 to $131.
This increase allows the Department to recover the costs of security and
other enhancements to the non-immigrant visa application process.
This increase applies both to non-immigrant visas issued on
machine-readable foils in passports and to border crossing cards issued to
certain applicants in Mexico.
Applicants who paid the prior $100 application fee before
January 1 will be processed only if they are scheduled and appear for a visa
interview before January 31. Applicants who paid the prior
$100 application fee and appear for visa interviews after January 31, 2008 must
pay the difference -- $31 -- before they will be interviewed.
The Department is required by law to
attempt to recover the cost of processing non-immigrant visas through the
collection of the Machine-Readable Visa application fee. Because of new
security-related costs, new information technology systems, and inflation, the
$100 Machine-Readable Visa fee is lower than the actual cost of processing
non-immigrant visas. In fact, the $100 fee was already lower than the
cost of processing non-immigrant visas when the fee was reviewed as a part of
the cost of service study in 2004. The Department has been absorbing the
additional cost. We are now collecting 10 fingerprints from each
applicant, and the cost charged by the FBI to review those fingerprints no
longer allows us to do this. The application fee has increased twice
since September 11, 2001, the last time in
2002.
Source: http://www.state.gov/r/pa/prs/ps/2007/dec/97384.htm
December 10, 2007
Social Security Admin. Sets Procedures on When F-1 Students May Apply for
SSN's
Source: http://www.nafsa.org
The Social Security Administration (SSA) updated their Program Operations
Manual System (POMS) to provide new guidance on evidence requirements for F-1
and M-1 students applying for a Social Security Number (SSN). Under the new
guidance at POMS RM 00203.470 section K.8:
- For non-EAD based F-1 student employment (CPT and on-campus employment) SSA
will not process an application for a SSN if it is more than 30 days in advance
of the scheduled employment start date.
- In the case of EAD-based F-1 or M-1 employment, the employment start date
on the EAD must already have been reached before SSA will process the
application for a SSN.
Before November 2007, there was no employment start date restriction on
applying for a SSN.
November 1, 2007
DHS Removes I-485 Receipt Requirement for H and L Nonimmigrants Who Travel
With Pending Adjustment of Status
72 Fed. Reg. 61791
Effective November 1, 2007, the Department of Homeland Security (DHS)
removed the requirement that certain H and L nonimmigrants returning to the
United States following a trip abroad while their adjustment of status
applications are pending must present an I-485 receipt notice to avoid having
such applications deemed abandoned. Showing the I-485 receipt notice is no
longer required. Other conditions of admissibility for such nonimmigrants
remain unchanged. Please contact your Dartmouth College international
advisor if you have questions about this.
May 6, 2007
US-VISIT Exit Checkout No Longer Needed
CBP completed a three-year pilot program that required international
visitors to biometrically check out at a US-VISIT departure kiosk at 14
airports and seaports, and announced that effective May 6, 2007, international
visitors are no longer required to check out at a US-VISIT exit kiosk when they
leave the United States. All other exit procedures remain the same.
International visitors who received a Form I-94 upon arrival must still
return it to an airline or ship representative when departing the United
States.
May 4, 2007
Biometric Visa Program Moves to Ten Fingerscans
The Department of State announced that it is transitioning to a
10-fingerscan system for its Biometric Visa Program. Deployment of the
10-fingerscan system began in April 2007 and DOS hopes to complete deployment
at all visa-issuing consular posts by the end of 2007. The prior system scanned
two fingerprints only. DOS expects the 10-scan system to reduce error and
increase efficiency of the visa clearance process.
Source: http://www.nafsa.org
Nov. 2006
New Five-year Period Allowed for J-1 Scholars, Profs
On May 19, 2005, DOS published a final rule to implement key changes to the
Exchange
Visitor regulations affecting the J Professor and Research Scholar categories.
Under the rule:
• The maximum period of participation for J Professors and Research Scholars
has
been raised from three years to five years. The five-year period is not an
aggregate of
five years. It is a continuous five-year period given to a participant on a
“use or lose”
basis.
• A 2-year bar on repeat participation in the J Professor or Research
Scholar
categories applies to those who complete their program participation.
These changes were effective on November 18, 2006. Please contact your
Dartmouth college international advisor for more information.
September 15, 2004
U.S. Social Security Applications by International F-1 Students --
Update
The U.S. Social Security Administration has issued new regulations,
effective October 13th, 2004, which will require international F-1 students to
present a new letter in support of their U.S. Social Security number
application, signed by their hiring supervisor AND their
international advisor. A template of this letter is available from the
International Office, or from our website, at: (http://www.dartmouth.edu/~intl/updates/prearrival/ssc.html).
The letter should be printed out on the hiring department letterhead and signed
by the hiring supervisor. The student should then bring the letter to the
International Office for a signature from the international advisor.
After October 12, 2004, F-1 students may not apply for U.S. Social
Security numbers if they do not have on-campus employment, or have been
approved for Optional Practical Training or Curricular Practical
Training.
NOTES:
- The student may submit recent paycheck stubs as proof of on-campus
employment in addition to the letter mentioned above.
- If the F-1 student is receiving a scholarship that does not require any
work in exchange, then the student is not eligible for a U.S. Social Security
number unless he/she finds an on-campus job. If the student will not work
on campus, he/she will need to apply for a U.S. Individual Taxpayer ID number
(ITIN). Contact the International Office for instructions on how to apply
for the ITIN, or see this Website for information on the ITIN: http://www.irs.gov/individuals/article/0,,id=96287,00.html.
See this Website for the ITIN application "W-7" application form: http://www.irs.gov/pub/irs-pdf/fw7.pdf
Please monitor the International Office immigration bulletin for
announcement of U.S. tax workshops in February and March.
September 1, 2004
SEVIS fee imposed
The U.S. government has imposed a new SEVIS fee for all new F-1 and J-1
students and scholars coming to the U.S., with I-20 or DS-2019 forms issued on
or after September 1, 2004, and marked as "Initial." Please see the
following government information pages for more information on the SEVIS
fee. Again, please note that continuing F and J students and scholars do
not have to pay this fee.
http://www.ice.gov/sevis/factsheet/090104_fs.htm
December 1, 2003
NSEERS 30-DAY AND ANNUAL INTERVIEW REQUIREMENTS TO BE SUSPENDED
The Department of Homeland Security (DHS) today announced that it will
suspend the formal requirement for individuals previously registered in the
National Security Entry/Exit Registration System (NSEERS) to re-register after
30-days and one year of continuous presence in the United States. The interim
rule outlining the new procedures will take effect immediately with publication
in the Federal Register, and allows for a 60-day public comment period.
This decision to suspend the requirement was made after careful review of
the NSEERS program by DHS. Although the program has proven valuable, the
Department of Justice, which originally established NSEERS, always intended the
program to be an initial step towards a full entry-exit system. DHS is
preparing to institute a new program, U.S. VISIT, at the end of this year that
when fully implemented will collect information and biometric identifiers from
most visitors to the US and record their departure. The Department has
determined that U.S. VISIT and other new processes being implemented will meet
the national security needs that NSEERS previously fulfilled.
Although certain visitors may still be registered at their time of arrival
at U.S. ports-of-entry, there will no longer be a mandatory requirement for all
persons registered to report for interviews as was previously required, once
the new policy is fully implemented.
Changes Made By the New Rule:
There will no longer be a 30-day or one-year re-registration requirement,
effective with the publishing of the new rule in the Federal Register.
In place of the previous requirement, the new rule will allow DHS, as a
matter of discretion, to notify individual nonimmigrant aliens subject to
NSEERS registration to appear for one or more additional continuing
registration interviews in those particular cases where it may be necessary to
determine whether the alien is complying with the conditions of his or her
nonimmigrant visa status and admission.
The rule also provides that when an alien who is monitored under Student and
Exchange Visitor Information System (SEVIS) notifies DHS of a change of address
or change of educational institution through SEVIS, it also constitutes a
notification for the purposes of NSEERS registration.
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