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STEM Degree Programs

F-1 students are typically able to seek a 12 months of OPT following graduation. 8 C.F.R. § 214.2(f)(10)(ii). Pursuant to the new regulation, an F-1 student may apply for an additional 17 months of OPT, if the student’s current OPT is based on a bachelor’s, master’s, or doctoral degree in one of the degree programs listed on the current STEM Designated Degree Program List, published on the SEVP web site. 8 C.F.R. § 214.2(f)(10)(ii)(C)(2). As of April 11, 2008, the designated degree programs include:

• Computer Science Applications
• Actuarial Science
• Engineering and Engineering Technologies
• Biological and Biomedical Sciences
• Mathematics and Statistics
• Military Technologies
• Physical Sciences
• Science Technologies
• Medical Scientist

Note that the student’s current OPT must be based on a degree in one of the above fields for the student to be eligible to seek the additional 17 months of OPT. 8 C.F.R. § 214.2(f)(10)(ii)(C). If, for example, the student held a bachelor’s degree in a designated STEM field but was engaged in OPT based on a master’s degree earned in a non-STEM field, the student would not be eligible to seek the additional 17 months of OPT. See id.

E-Verify Employers Only

Moreover, a STEM graduate may seek the additional 17 months of OPT, if he or she is working for an employer who participates in USCIS’s e-Verify program, which requires employers to verify the Social Security numbers of all newly hired employees.  The additional 17 months of OPT for STEM graduates thus provides a partial, stop-gap solution to the annual H-1B shortage by allowing an employer to continue to employ an F-1 STEM graduate while the employer makes multiple attempts to obtain an H-1B for the student over successive government fiscal years. Many employers are likely to give serious consideration to enrolling in e-Verify, if for no other reason than to retain highly-educated foreign students with degrees in science, technology, engineering, and mathematics. 

The language of the new regulation also means most (if not all) foreign national students are very likely to start asking prospective employers, “Are you a participant in e-Verify?” Like the employer, the foreign national student will be interested in having as many opportunities as possible to obtain an H-1B.

H1B Cap Gap Relief

The DHS’s regulation also attempts to provide relief for F-1 students who are seeking H-1B status effective October 1, 2008 (when the government’s fiscal year starts) but whose current OPT expires before that date. The regulations addresses this gap in status and work authorization - commonly referred to as the H-1B “cap gap” - by extending through October 1, 2008, the period of authorized stay and employment authorization of an F-1 student for whom an employer has filed an H-1B petition, provided the employer’s H-1B petition: (1) is selected for processing; and (2) seeks a change of status to H-1B (as opposed to consular processing). 8 C.F.R. § 214.2(f)(5)(vi). In addition, the student must not have otherwise violated the terms of his or her F-1 status. 8 C.F.R. § 214.2(f)(5)(vi)(C). As you would expect, the extension of stay and work authorization expires, if the H-1B petition is rejected, revoked, or denied. 8 C.F.R. § 214.2(f)(5)(vi)(B).

It should be noted that USCIS received at least 31,200 “advanced degree” H-1B petitions and another 132,000 standard H-1B petitions, in the first five days of filing. See April 10, 2008, USCIS Update. In any given fiscal year, USCIS cannot approve more than 20,000 advanced degree H-1B petitions or more than 65,000 standard H-1B petitions. Accordingly, USCIS will randomly select 20,000 of the 31,200 advanced degree H-1B petitions received for processing, meaning such petitions have roughly a 2-in-3 chance of being selected for processing against the advanced degree quota. The remaining 11,200 advanced degree petitions that are not selected for processing against the advanced degree quota will be added to the 132,000 standard petitions for consideration against the general quota. USCIS will then randomly select 65,000 petitions for processing from the combined pool of 143,000 petitions, giving such petitions less than a 1-in-2 chance of being selected for processing.

Questions

The foregoing is not intended as legal advice. If you have questions regarding the OPT regulation or the e-Verify program, please contact one of our attorneys.