U.S. IMMIGRATION POLICIES
Extend your stay as a student
SHEELA MURTHY
|
A look at an interim rule that allows F1 visa students of certain disciplines to continue to work in the U.S. beyond the legally allowed 12-month period. A two-part series.
|
Photo: H. Vibhu
Welcome relief: For students, working for longer periods in the U.S. just became easier.
In Part 1 of this article, we want to share an update that will enable students studying in the U.S. on F1 student status to be able to work legally not just for the 12 months of Optional Practical Training (OPT) but, for certain students, well beyond that date. This information is particularly helpful for students to live and work in the U.S. after the H1B quota was exhausted at the very start of the new fiscal year. The rule that allows an additional 17 months of F1 OPT time is a tacit encouragement from the U.S. government to support and encourage science, technology, engineering, and mathematics graduates, to continue to remain and work in the U.S. It is also an acknowledgement by the U.S. government of helping and recognising the value of those who invest in a U.S. education and a U.S. educational institution instead of getting a foreign degree. Finally, it also requires U.S. employers wishing to hire F1 OPT work authorised students into registering under the e-Verify program.
On April 8, 2008, the U.S. Department of Homeland Security (DHS) issued an interim rule that extends F1 OPT for student visa holders by an additional 17 months. Although most immigration programs are run and managed by the U.S. Citizenship and Immigration Service (USCIS), the F1 program is run by another DHS agency called the Immigration and Customs Enforcement (ICE).
Criteria for eligibility
Students eligible for OPT must work for a U.S. employer in a job directly related to the student’s field of study. The F1 visa allows a student to enter the U.S. temporarily to study at a school certified by the Student and Visitor Exchange Program (SEVP). Previously, students on F1 status had to apply for OPT up to 60 days prior to graduation.
Prior to the interim rule, F1 students who had been enrolled in school full-time for at least one year could work under OPT for 12 months. The interim rule now extends that period to allow for a total of 29 months for F1 students who complete a STEM degree (Science, Technology, Engineering or Mathematics) and are hired by a U.S. employer that is enrolled in the U.S. government’s e-Verify program.
The rule provides recent STEM graduates with more flexibility to successfully apply for another work status during more than one USCIS fiscal year — including the coveted but limited number of H1B status/ visa. As some of you may be aware, the total of 65,000 H1Bs under the general quota and even the additional 20,000 for Master’s degree holders from a U.S. educational institution were all filled within the first few days that an H1B petition could be filed under law. Many employers who hire F1 students on OPT want to retain them and eventually petition for H1B status. But demand for H1B visas is disproportionately high in relation to supply. Student workers are often unable to obtain H1B status in time which forces many valuable and U.S.-trained employees to leave the country.
Convenient provision
The rule also addresses the “cap-gap” problem by extending the period of stay for F1 students who have already filed an H1B petition and change of status request that is pending with the USCIS. The term “cap-gap” refers to, for example, where the student’s F1 expires on June 1, 2008 and then, before the start date of the H1B on October 1, 2008, the student is allowed to stay legally for up to 60 days under the F1 grace period but cannot work. By July 31, 2008, the students must depart the U.S. Under the “cap-gap” protection now, eligible F1 students who can file the F1 OPT extension for an additional 17 months, by simply filing the H1B petition, will now be allowed to remain in the U.S. and work legally until the start date with their new employer takes effect. This is dramatically different than before the April 8, 2008 law that required these students to either depart the U.S. after the F1 grace period or required them to file for the change of status but in either event, did not allow them to work legally in the U.S.
Of course, true to our American legal system, the great democratic values afforded under the U.S. Constitution and the rights and privileges it offers, people and organisations express their displeasure by suing the U.S. government! Interest groups, including the Immigration Reform Law Institute and the Programmers Guild, recently filed a lawsuit in response to the interim rule, claiming DHS overstepped its authority by extending the OPT to 29 months. The plaintiffs argue the rule is simply a loophole created to bypass the statutorily mandated H1B cap limit without going through all of the legal requirements and processes required for a new law. These interest groups also believe the H1B annual cap of 85,000 is set too high when all economic indicators suggest otherwise. Of course, many technology companies disagree vehemently with these groups but that is both the benefit and bane of the democracy, where people will express their opinions freely and sue if needed to make a point, irrespective of the time and costs involved!
Although a 17-month extension is beneficial to certain U.S. employers hiring STEM graduates, as well as helping foreign students who have invested substantially in terms of years and money in an American education, another controversial element of the F1 OPT extension is the e-Verify requirement DHS sneaked into the interim rule.
In Part 2 of this two-part series, we will focus on the details and debate of e-Verify that concern many businesses that wish to hire F1 OPT students or H1B workers.
(To be concluded)
The writer is an attorney with the Murthy Law firm (www.murthy.com). Write to her at: feedback@murthy.com
Printer friendly
page
Send this article to Friends by
E-Mail
Magazine
