Labor Immigration Law

We have received many inquiries in connection with the OPT extension to 29 months for holders of STEM degrees (non-STEM degrees also get some relief under the new OPT rule).  One of the questions asked most often is, “How do I know if my degree is a STEM degree?”

The first step is to find the classification number of your degree.  We are providing a link to the Classification of Educational Programs, provided by the Department of Education.

Once the degree classification is determined, an F-1 or OPT holder should look at the list of STEM degrees which, according to DHS, entitled their holders to an additional term of 17 months.  We are reprinting the DHS list below:

• Actuarial Science. NCES CIP Code 52.1304
• Computer Science: NCES CIP Codes 11.xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
• Engineering: NCES CIP Codes 14.xxxx
• Engineering Technologies: NCES CIP Codes 15.xxxx
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
• Mathematics and Statistics: NCES CIP Codes 27.xxxx
• Military Technologies: NCES CIP Codes 29.xxxx
• Physical Sciences: NCES CIP Codes 40.xxxx
• Science Technologies: NCES CIP Codes 41.xxxx
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

If your degree’s classification is listed above, then your degree is STEM.

We wrote earlier about the F-1 Visa OPT extension proposal.  We are happy to report that the OMB review has been complete and that the rule is expected to be published in the Federal Register during the week of April 7, 2008, at which time of publication the rule becomes effective. The new OPT rule brings great relief to many students or OPT holders who are in a difficult position because of the timing of the H-1B filing season and the expiration of their OPT.

We have obtained an advance copy of the DHS rule and we are providing a PDF of the rule as well as detailed analysis below.

Summary and Analysis of the New OPT Rule

29 Month OPT for STEM Students.  The 12 month limit on F-1 OPT is extended by 17 months for a total of 29 months  for holders of degrees in certain Science, Technology, Engineering and Mathematics (STEM) areas.  Eligible degrees are:

• Actuarial Science. NCES CIP Code 52.1304
• Computer Science: NCES CIP Codes 1 1 .xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
• Engineering: NCES CIP Codes 14.xxxx
• Engineering Technologies: NCES CIP Codes 15.xxxx
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
• Mathematics and Statistics: NCES CIP Codes 2 7 . m
• Military Technologies: NCES CIP Codes 29.xxxx
• Physical Sciences: NCES CIP Codes 4 0 . m
• Science Technologies: NCES CIP Codes 41 .xxxx
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

Additional Requirements.

• Student must be currently participating in a 12-month OPT and must be working for a U.S. employer in a job directly related to the student’s major area of study (which, of course, must be one of the areas listed above)
• Student must have successfully completed a bachelor’s, masters, or doctoral degree from a SEVIS-certified educational institution.
• The student has not previously received a 17-month OPT extension.
• The Designated School Official (DSO) must recommend the 17-month OPT extension after verifying that the student otherwise qualifies for the extension.
• Employer must be E-Verify registered.
• Employer must agree to report the termination/departure of the student to the DSO.

Application.  Students who qualify and wish to extend their OPT by 17 months must file form I-765 and attach the applicable fee.  Students who timely file their OPT extension application will be allowed to continue employment until the final decision of the I-765 form or 180 days, whichever comes first.  Under the new rule, students can file his or her I-765 up to 90 days prior to his or her program end date, and up to 60 days after the program’s end date.

Non-STEM Students

There is substantial relief for non-STEM degree students whose OPT are set to expire.  Under the new rule, duration of status and work authorization will be extended for a student on OPT who is the beneficiary of a timely-filed H-1B petition requesting an employment with starting date of October 1.  This applies to all students, not just STEM students.  This renewal terminates automatically upon the rejection, denial, or revocation of the H-1B petition.

Update 2 (Apr 6; 11:30 am): the rule is expected to go into effect during the week of April 7, 2008. Here are the details of the rule.

On March 31, 2008, the U.S. Immigration and Customs Enforcement submitted to the Office of Management and Budget (OMB) for review an interim final rule entitled “Extending Period for Optional Practical Training for 17 Months for Qualified F-1 Students.”

Details on the proposed rule are scarce at this point and we will provide updates as we receive them, but the important point is that the government is listening to the concerns of U.S. businesses and foreign students who find themselves in a difficult position when they are unable to apply for H-1B visa post-graduation in May (because the H-1B visas are already used by May) and out of OPT status during the following year and before being able to transfer to H-1B visa.

As a matter of procedure, OMB has up to 90 days to review the proposed rule and either approve it for publication in the Federal Register, at which point it becomes active, or send the rule back for revision.

Please stay tuned on more details on this important rule.

Update 1 (Apr 3; 4:50 pm): Some readers have inquired about the conflicting reports of 29-month time period for OPT instead of 17. In our opinion, this is due to accumulating the possible time on OPT. Currently, OPT can be used once, for 12 months, after obtaining a Bachelor’s degree and subsequently one more time, for 12 months, after obtaining a Master’s degree. We think that the proposed rule will extend only one of these OPT windows to 17 months while the second OPT will be limited to 12. This rationale would explain the 29-month OPT reports. Note that this is not an official rule or interpretation of it, it is just a speculation at this point.

Update 2 (Apr 6; 11:30 am): the rule is expected to go into effect during the week of April 7, 2008. Here are the details of the rule.