New OPT Rule Effective Today, April 8, 2008

The interim final rule regarding the extension of optional practical training (OPT) for certain foreign national students was published in today’s Federal Register, meaning the rule is now in effect.

The final rule will be issued after the Department of Homeland Security reviews public comments, which must be submitted by June 9, 2008.

The rule extends OPT for two categories of students. The first is for pending H-1B applicants who are caught in the cap gap caused by the limited annual availability of visas. Those applicants with a start date of Oct. 1, 2008, when the new H-1B visas become available, but whose OPT period will expire before Oct. 1, 2008 will receive an automatic extension of their OPT to cover them through Oct. 1, 2008, assuming the H-1B application is approved.

If the application is denied, the student has 60 days to leave the country from the date of notification of the denial.

The second category of students to benefit from the new rule are those who hold degrees in science, technology, engineering and mathematics and whose employers are enrolled in the controversial E-Verify program. OPT for these students is being extended from 12 months to 29 months, a 17-month increase.

The published rule in the Federal Register is available here: http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf

For more information about this new rule, please see our earlier article OPT Extension to Benefit H-1B applicants and STEM students

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2 Responses to New OPT Rule Effective Today, April 8, 2008

  1. leo says:

    What is a controversial E-Verify program? How can we tell if an employer is enrolled in the controversial E-Verify program? Thanks

  2. Vonda K. Vandaveer says:

    E-Verify is the US government system that relies on the Social Security Administration’s database to verify a person’s employment eligibility. This database is criticized for being error prone.

    Information about the program is available here: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=75bce2e261405110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD

    The Austin American-Statesment recently published a story on this system here:

    http://www.statesman.com/search/content/shared/news/immigration/E_VERIFY26_COX.html

    In addition, the CATO Institute issued a study criticizing the concept of an employment-eligibility verification sytem such as E-Verify here:
    https://vkvisalaw.wordpress.com/2008/03/08/study-slams-mandatory-e-verify-program-as-ineffective-expensive-intrusive/

    A recent lawsuit over a new DHS rule that involves this SSA database and the problems it presents is available on the ACLU site here: http://www.aclu.org/immigrants/workplace/31643res20070829.html

    As to whether an employer is enrolled, you should simply ask your employer. There is also a site that says it offers a list, but it may or may not be up-to-date:
    http://www.smartbusinesspractices.com/pilot/

    We will be posting more on the controversies surrounding the E-Verify program, including providing a round-up of articles from across the country on the issue, so stay tuned!

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