Elimination of the H-1B "Cap-Gap"

The “cap-gap” occurs when post completion optional practical training (OPT) expires when students in F-1 status have an H1B work visa application pending. This occurs because H1B work visas can be applied for on April 1^st, but do not take effect until October 1^st. Since OPT in most cases can only be granted for 12 months and must begin within 60 days after completion of studies, students who graduate in May often have a “gap” when they finish their OPT sometime between May and July, yet their H1B does not begin until October. The new regulation will allow  F-1 students who had an H1B application filed in timely manner to remain in the U.S. and continue working until October 1^st when the H1B will take effect.  If the pending H-1B petition ultimately be denied, the extension is automatically terminated and the student has 60 days to leave the country.  Until further notice this extension is automatic so that no new Employment Authorization Document is required. 

OPT filing now accepted up to 60 days after completion of studies

Prior to the new regulation, an applicant for post-completion OPT was required to file their application before their completion date. Under the new rule, a student will be able to file the OPT application up to 90 days before the completion date, and up to 60 days after the degree completion date.   Please keep in mind that it can still take up to 90 days for the Immigration Service to process your OPT, therefore, the OISS still recommends applying prior to your start date.

NEW OPT Reporting Requirements

All stsudents on OPT must report to the international student office at their former school:
* The OISS is currently working on the best way for you to report this informaiton. For now please email the information to bcis@bc.edu

Any change in name or address within 10 days of the change (this is not a new requirement)

The name and address of their employer

Any change to the name and address of the employer

Any interruption of such employment (see employment requirements below)

Employment Requirements for Students on Post-Completion OPT

Allstudents are now required to be employed during their post- completion OPT period. More specifically, students on post-completion OPT may not accrue a total of more than 90 days of unemployment under the initial 12-month period of OPT.  Students granted a 17-month OPT extension (see below) may not accrue an aggregate of more then 120 days of unemployment during the total 29-month OPT period.

OPT extension to 29 months for STEM DEGREE students ONLY (Science, Technology, Engineering, Mathematics)

The 12-month limit on F-1 Optional Practical Training (OPT) will be extended by 17 months, for a total of 29 months, for certain STEM degree holders (Science, Technology, Engineering, Mathematics). The major on your I-20 form must be one of the majors below- this is not flexible.  In order to apply for the 17 month extension, you will need to have a degree in STEM field (see below) and be working in a job directly related to your degree. The employer must also be part of the e-verify employment verification system. The application is processed through the OISS and the USCIS. Applications for the 17-month STEM extension must be filed BEFORE the EAD expires.

STEM Fields include:                                                        
Actuarial Science                                                                                                                     
Computer Science Applications                                           
Engineering, Engineering Technologies
Biological and Biomedical Sciences
Mathematics and Statistics
Military Technologies
Physical Sciences
Science Technologies
Medical Scientist (MS, PhD)

Boston College qualified STEM degrees:
Geology and Geophysics (Bachelors), Geology (Bachelor’s and Master’s) and Geophysics (Bachelor’s and Master’s)
Biology (Bachelor’s, Master’s, PhD)
Physics (Bachelor's, Master's, PhD)
Chemistry (Bachelors, Master’s, PhD)
Computer Science, CSOM or A&S (Bachelor’s only)
Information Systems CSOM (Bachelor’s only) 
Mathematics (Bachelor’s and Master’s)

Summary of Requirements for the 17 month STEM extension:

Student must be currently participating in a 12-month period of OPT, working for a U.S. employer in a job directly related to the student’s major area of study.

The student must have successfully completed a bachelors, masters or doctoral degree in a field on the DHS STEM Designated Degree Program list, from a  US college or university.

Student must have a job offer from an employer registered with the E-Verify employment verification system.

The student has not previously received a 17-month OPT extension after earning a STEM degree.

The student must apply for the 17-month extension through their former school’s international student office. 

 The student must file the extension application in a timely manner, generally 90 days before the current period of OPT expires

Student will have to apply for the 17-month extension on Form I-765 with fee.

Students who timely file an application for the 17-month OPT extension will be able to continue employment while the extension application is pending, until a final decision on the I-765 or for 180 days, whichever comes first.

The employer must agree to report the termination or departure of the student to the the international office of the former school or through "any other means or process identified by DHS." An employer must consider a worker to have departed when the employer knows the student has left employment, or if the student has not reported for work for a period of five consecutive business days without the employer's consent.

  

In addition, students with an approved 17 month STEM extension must report to the international student office within ten days:

Any change in name or residential/mailing address

The name and address of their employer

Any change to the name and address of the employer

Any interruption of such employment

Students with an approved 17 month extension must also make a validation report to the international student office at their former school every six months starting on the date the extension begins and ending when the OPT ends. The validation is a confirmation that the students name and address, employer name and address, and /or loss of employment is current and accurate 

Additional Resources

Department of Homeland Security Announcement
US Citizenship and Immigration Services Q and A (pdf)
Text of Interim Final Rule (pdf file, 13 pages)

Source: NAFSA, Association of International Educations and USCIS