Cornell University ISSO: Information for F-1 Students

Relief for F-1 students affected by the "H1B Cap Gap": A new regulation for F-1 OPT work authorization

Updated as of May 11, 2008

Download this information as a handout here.

A new regulation has been published April 8, 2008, addressing some of the most difficult work authorization issues for F-1 students. As you all are probably aware, because of the limitation on H1B worker visas, often F-1 students will end up having a gap in work authorization and even in the ability to remain legally in the U.S. between the end of the 12 month post-graduation OPT work authorization period and the start of a potential H1B working visa status. The new regulation provides some solutions to this issue as well as some new requirements for students on OPT. The details are described below:

automatic extension of work authorization for F-1 students on OPT in all fields

how to obtain I-20 showing automatic extension of F-1 OPT work authorization

17 month extension of F-1 OPT for students in certain fields.

Details on the STEM fields eligible for 17 month extension

New requirements for students on OPT

Students on OPT now required to report employer information

may now apply for OPT during the 60 day grace period after graduation

Automatic extension of work authorization through start of approved H1B for F-1 students on OPT in ALL fields:

The work authorization and status of F-1 students whose OPT runs out before the start of a pending H1B visa status will be extended “automatically.” This extension will cover F-1 students on OPT with jobs in ALL fields, not only the students with degrees in certain fields. If a student on F-1 OPT has a valid H1B application pending (or approved) and the OPT ends, the student is eligible for this automatic extension as long as that H1B application was filed with a “change of status” and not with “consular notification.” Check with your employer about whether they filed your H1B with a change of status. The USCIS will allow employers to change their choice of “consular notification” to “change of status” on a pending H1B application by requesting that within 30 days of the receipt notice date. Procedures are described here.

To obtain this “automatic” extension, the student will have to notify their school (Cornell's ISSO) that they are eligible for the extension and request a new I-20 showing the extension. Send an email to sw57@cornell.edu with your full name as it appears on your I-20, your SEVIS id#, your OPT start and end dates, your current mailing address and a scanned copy (or you can fax it) of either your H1B receipt notice or your H1B approval notice. We will then request a data fix from the SEVIS help desk. We do not know for sure how long it will take to get the new I-20 since this is a brand new procedure. It may take us several weeks to get an updated I-20 to you.

F-1 OPT extension of 17 months for students in certain fields:

F-1 students on OPT who have received a degree in the fields listed below, referred to as “STEM” fields (science, technology, engineering, or mathematics), will have an opportunity to apply for a one time 17-month extension of their regular 12 month OPT period. You will NOT apply for 29 months up front. The 17 month extension will allow students to have continuous work authorization at least through October 1st of any given following year, in case they do not get an H1B visa in their first year after graduating. 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.

PROCEDURES FOR THE 17 MONTH EXTENSION:

FIRST: Students graduating now with degrees in these fields will first apply for the regular 12 month period of OPT as usual.

THEN, once you have begun your first 12 months of OPT, if you meet the following criteria, you can apply through the ISSO office for your 17 month extension of your OPT. You will do this by filling out the regular OPT application. The USCIS recommends that you apply for this extension between 90 and 120 days before the end date of your first period of OPT.

CRITERIA FOR THE 17 MONTH EXTENSION:

Your employer must be enrolled in the USCIS the “E-Verify” program (see information links below or click here).

You must have graduated and be working in one of the fields listed below referred to as “STEM” fields

You must have maintained status while on OPT

“STEM” fields (science, technology, engineering, or mathematics):

Actuarial Science
Computer Science Applications
Engineering
Engineering Technologies
Biological and Biomedical Sciences
Mathematics and Statistics
Military Technologies
Physical Sciences
Science Technologies
Medical Scientist (MS, PhD)
Details on the STEM fields here

E-Verify:

E-Verify is an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. E-Verify provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers. More information is available at the USCIS web page on E-Verify.

Some new requirements for students on OPT

Employment information will be required:

Students on 12 month OPT period will have to report to the school not only address changes but ALSO employer name and address and any changes in employment. Students on the 29 month OPT period will also have to report name and address of their employer, any changes in employer AND they will have to complete a report to the school every six months while on the 17 month extension. Click here to complete the OPT report form.

LIMIT on total days of unemployment allowed:

The regulation adds a new requirement that F-1 students on OPT may not remain unemployed for more than a total of 90 days out of a 12 month OPT period, or 120 days out of a 29 month OPT period. The days of unemployment will start on the start date of your OPT card, or the day the OPT is approved (whichever is later) if you are not employed. For students whose OPT was approved before April 8, 2008, days of unemployment prior to April 8th do NOT count toward the 90 day limit. Days of unemployment after April 8, 2008 DO COUNT TOWARDS THE LIMIT.

Employment MAY be unpaid in the regular 12 month period of OPT:

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. For the 17-month STEM extension, employment must be traditional paid employment.

Other aspects of the new regulation:

Can apply for OPT in 60 day grace period:

The regulation also extends the filing period of Post-completion OPT through the 60 day grace period—previously OPT applications had to be filed by the graduation date.