The Department of Homeland Security recently published an interim final regulation affecting a popular employment authorization program for foreign students. Many of these students later become candidates for H-1B visas sponsored by their employers, and this rule affects that transition as well.

Foreign students on F-1 visas have long been eligible for a 12-month period of employment known as Optional Practical Training (OPT) following completion of an academic degree program. The 12-month limitation contributed to gaps in employment authorization when an employer sought to sponsor the student for H-1B status for continued employment. Students typically begin OPT in May or June, meaning the OPT period is exhausted in May or June the following year. Due to quirks in the H-1B program, initial H-1B status cannot commence prior to October 1 in any given year, thus producing a gap between the end of OPT and the start of H-1B status. To make matters worse, DHS has not permitted students caught in this trap to remain in the U.S. between the expiration of F-1 status and the start of H-1B status on October 1.

The new rule addresses some of these problems by changing some features of the F-1 OPT program; it does nothing to alter the short supply of H-1B visas, however. Further, one benefit provided by the new rule comes at a price to the employer - required enrollment in a government-run electronic verification system known as E-verify. E-verify checks information about a new hire against records in the Social Security Administration and Department of Homeland Security databases to confirm employment authorization. DHS hopes to enroll as many employers as possible in E-verify, hence the requirement for enrollment as a condition of enjoying some of the benefits of the new F-1 OPT rule.

The new rule makes possible a 17-month extension of OPT, permitting a total of 29 months of OPT following completion of a Bachelor’s, Master’s, or Doctorate degree, but only if the student’s major field of study is in a science, technology, engineering, or mathematics field (so-called STEM fields). This benefit is only available to students whose employers are enrolled in E-Verify. Students eligible for the 17-month OPT extension must apply prior to the expiration of the first 12 months of OPT. If the extension application is timely filed, the student remains authorized to work while the extension application is pending, up to 180 days.

Another feature of the rule allows students to remain in the U.S. and provides an automatic extension of OPT to October 1, if the student’s employer has a petition requesting H-1B status on behalf of the student to begin October 1. This feature of the rule is not limited to students graduating in a STEM field nor does it require that the employer enroll in E-Verify. Other features of the rule impose requirements on students to report and periodically validate information about their (and employers’) addresses, and periods of interruption in employment.

Please feel free to contact any of Dorsey & Whitney’s immigration attorneys with questions about F-1 Optional Practical Training, H-1B visas, E-Verify or any other immigration issues.

This article originally appeared in Dorsey's Immigration Update