On April 4, 2008, the Department of Homeland Security (DHS) announced a new interim final rule extending the period of F-1 Optional Practical Training (OPT) from 12 to 29 months for certain qualified F-1 non-immigrant students. DHS advises that the extension will only be available to F-1 students with a degree in science, technology, engineering, or mathematics (known as "STEM" degree programs). Eligible F-1 students must also be employed by a company that has enrolled in the DHS E-Verify program in order to qualify. The additional 17 months of OPT must be applied for in a separate application from the standard 12 months of post-graduation OPT.

DHS also announced that the rule provides for an automatic extension of status and employment authorization for all F-1 students with pending H-1B petitions. Many F-1 students with pending H-1B petitions will have a gap in employment between their authorized period of OPT and the validity of their H-1B petition on October 1 and this rule would essentially fill this gap.

DHS's proposal to provide relief for the H-1B cap gap will allow many individuals to remain in the U.S. and continue to work for the next few months. Until the H-1B selection process has been completed, it is unknown which F-1 students can benefit from this change. In addition, for those F-1 students subject to a gap in employment authorization, most of their H-1B petitions were filed requesting consular notification, rather than a change of status to H-1B in the U.S. It is unclear at this time how U.S. Citizenship and Immigration Services (USCIS) will process these applications, in light of the new regulation.

We would also note that limiting the 17 month extension of OPT only to STEM graduates who are employed by employers registered for E-Verify may limit the ability of most F-1 students and employers to benefit from the announced OPT extension. As recently as February 2008, only 52,000 employers throughout the U.S. had registered for E-Verify, meaning that more than 99.999% of the more than 6 million employers in the U.S. are not enrolled in the E-Verify program. It would appear that DHS hopes to use the incentive of additional OPT time to compel many of these employers to register for E-Verify. While E-Verify is a voluntary program that is offered to employers without a fee, E-Verify imposes burdens on employers who enroll in the program, as they must complete mandatory E-Verify training, and comply with the E-Verify programs reporting requirements for all new hires. E-Verify also requires the enrolling employer to sign a lengthy Memorandum of Understanding (MOU) with DHS, which requires the employer to effectively agree to a DHS audit of the employer's existing I-9 documents, and to agree to DHS auditing and monitoring of E-Verify compliance by the employer. Employers should consider these factors before registering for E-Verify.

We will provide additional updates on the OPT extension regulations, and the implementation of cap-gap relief as more information becomes available.

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