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Greg Siskind on Immigration Law and Policy

THE NEW OPT RULE FAQ

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OK, here are FAQs on the new OPT rule, E-Verify, a complete list of qualifying STEM professions and the full text of the OPT rule. I'll consider the two FAQs to be works in progress so please post questions in the comments and I'll consider them for inclusion in revised versions of the articles. Finally, note that in my original posting of STEM professions, I did not redact out "99 - other" professions and have done so now.



Download ead_extension_faq.pdf



Download everify_q_a.pdf



Download combined_stem_list.pdf



Download opt_rule.pdf

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  1. Jay's Avatar
    Hi Greg

    I hope you answer this question.

    The uscis website in the press release setion states that

    What are the eligibility requirements for the 17-month extension of post-completion OPT?
    -The student must have a bachelor's, master's or doctorate degree in a STEM field.
    -The employer must be enrolled in E-Verify.
    -The student must apply on time (at least 90 days before the current post-completion OPT expires).

    My question is about the 3rd rule.How strict will they be in implementing it? My OPT expires on 11th May 2008, whih means that I dont have 90 days, so will I be still eligible to apply for OPT?

    I hope USCIS allows people like me to apply otherwise we would be the unlucky ones to miss out if we do not get through the H1B lottery.

  2. Dan Kowalski, Austin, Texas's Avatar
    How will this work in Illinois, where E-Verify is prohibited by state law?
  3. Greg Siskind's Avatar
    Hi Dan - Illinois has reached a temporary agreement with DHS not to enforce the law pending the decision by the courts and that companies that sign up now for E-Verify will not be punished for doing so.
  4. USC's Avatar
    From the WSJ as to why the visa cap should be scrapped:

    http://online.wsj.com/article/SB120735994107991743.html?mod=opinion_main_commentaries

  5. USC's Avatar
    Greg:

    I know that you are probably busy till April 7 but just wanted to remind you that your "Immigrant of the Day" is one of the more popular features.
  6. Greg Siskind's Avatar
    Jay - You're not reading the language correctly. You must apply WITHIN 90 days of your program end date for normal post-completion OPT. And for the STEM extension, you're okay as long as you file before the 12 months OPT expires. You'll get an automatic extension of your OPT until the decision is made on the STEM extension.

    Obviously double check with your immigration lawyer as I don't provide legal advice in this forum.
  7. Lipna's Avatar
    Hi Greg,
    I have the same query as Jay. My OPT expires on June 30th and I also don't have 90 days left. Am I eligible to apply for extension then? (according to http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9a3d3dd87aa19110VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD we have to apply 90 days prior to end of OPT)
    Also, my company applied for my H1 on April 1st so I should automatically be in cap-gap. But as I am not sure whether I will be selected or not should I apply for OPT extension in parallel??
    Confused!
    Please let me know what you think.

    Thanks,
    Lipna
  8. Greg Siskind's Avatar
    Folks are misreading the rule to mean you need to apply more than 90 days ahead of program completion. It's within 90 days and that I believe is only for the 12 month OPT. For STEM extensions, you just need to apply before the card expires and you're automatically extended. As for the H-1B cap gap, you should be able to apply for both. But you should discuss with your immigration lawyer.
  9. EB3's Avatar
    The 90-day parenthetical in the USCIS FAQs is erroneous and will be corrected as soon as possible. (There are other errors too, e.g., failure to list all the STEM fields.) The 90-day requirement applies only to regular 12-month OPT, not the extensions.
  10. Greg Siskind's Avatar
    If folks are interested, my FAQ is based on the actual reg that I uploaded with this post and not the USCIS FAQ which I found largely unhelpful.
  11. b's Avatar
    "DOS long ago issued a cable on immigrant intent analysis for students:"

    EB3, can you provide the link again? The one you gave is broken.
  12. Scott's Avatar
    Greg,

    Thanks for the helpful information. I do not have a STEM degree and my OPT expires on April 10th (this Thursday). I have a master's degree (JD) and my law firm applied for an h1b on April 1st. Will I be able to benefit from the new cap gap rule and, if so, will the extension of my OPT period be automatic? Also, do you know how soon the rule is effective and if I will be able to apply for the extension during my grace period.

    Thanks,

    Scott
  13. EB3's Avatar
    The rule will likely be published on Monday or Tuesday. It goes into effect upon publication. So the cap gap provision, which covers any F-1 student (not just STEM students), will go into effect at that time. JDs aren't a degree program eligible for a STEM extension.
  14. sixthday's Avatar
    The new rule is actually a big step back. It in fact limits your rights to find a job or find a good job.

    Note that the new rule states that under OPT, one cannot have more than 90 days unemployed. This means one has to land a job within 90 days after OPT starts. How possible is that? Consider the normal interview process from phone to onsite takes 1 to 2 months and background test may take another 1 month.

    Even if you have a job, you lose the freedom to wait a better one. You will stack on it.

    This little change will have more impact on international students than the extension part.
  15. Scott's Avatar
    Thanks EB3. In terms of the ability to work during the gap period, is the extension automatic or would I have to apply for it to be effective?
  16. EB3's Avatar
    Scott - The cap gap extension is automatic. You don't have to apply for anything.

    And with respect to Sixthday's comment - He's right. Everyone is clearly worse off. We should just revoke the extension regulation.
  17. freuD's Avatar
    this *****, STEM are not the only highly skilled students here in US, MBA and other masters from top ranked school will have to leave!!

    this extension should apply to all MASTERS like the 20k h1b quota

    i hope NAFSA, COMPETEAMERICA bring this issue up in the interim period and get them to change for the better!!

    also the 90 days rule is pure crap

    get rid of it!

    lets all write to NAFSA and COMPETEAMERICA and get it fixed
  18. Greg Siskind's Avatar
    Keep in mind that American-educated MBAs get the 20,000 bonus cap so the H-1B crisis does not hit them as hard. That may change in years to come, but for right now, the cap gap and the bonus cap should take care of most.
  19. 2degrees's Avatar
    Greg - 20k cap is avaiable to all, not just non-STEM students. It is really unfortunate for F1 students like me who have a bachelors degree in STEM field, but decided to remain in college to pursue a Masters degree in a non-STEM field. It gives such students a unique background vouched by many top notch institutions. I for one, had job offers from deloitte, pwc and e&y. I hope USCIS in good faith allows F1 students with multiple degrees from US universities and require only one of those degrees to be a STEM degree, to make them eligible for this 17-month extension of OPT.

    I am sure there are many other students like me. What is the best medium we can voice our opinion to the authorities regarding this? Or who should we contact if infact we can do something about this?
  20. Mike K's Avatar
    Hi Greg!

    Quick question - if we're studying in a field that's listed in the STEM list but as a cross-listed field (specifically, Cognitive Science which is "Cognitive Science. (Report under 30.2501)", are we eligible for the extension? This might be something worth adding to the FAQ is other people have similar concerns.

    Thanks!
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