| ||||||
| ||||||
|
USCIS Issues New Rule That Authorizes Opt Extensions For F-1 Students If Their Employer Participates In The E-Verify Program April 8, 2008 A new rule published today by the U.S. Citizenship and Immigration Service (USCIS), the U.S. Immigration and Customs Enforcement (ICE), and the Department of Homeland Security (DHS) would allow a 17-month extension of the period of optional practical training (OPT) for students in F-1 status if their OPT employer participates in the government’s E-Verify program. The new rule also ameliorates the H-1B “cap gap” problem for students whose F-1 status would otherwise expire before they would be eligible to change their status to H-1B. Summary of Requirements - The following conditions must be satisfied in order to be eligible for a 17 month extension to the OPT period:
The accuracy of the USCIS database used for verification has improved substantially since the start of the Basic Pilot program. However, further improvements are needed, especially if the Web Basic Pilot becomes a mandated national program – improvements that USCIS personnel report are currently underway. Most importantly, the database used for verification is still not sufficiently up to date to meet the [statutory] requirement for accurate verification, especially for naturalized citizens. USCIS and SSA accommodate this problem by providing for a manual review of these cases. This review is time consuming and can result in discrimination against work-authorized foreign-born persons during the period that the verification is ongoing . . . According to information presented in the new rule, “less than 1 percent of the total number of employers in the United States are currently enrolled in E-Verify . . . thus, DHS anticipates that most employers who would want to employ students under the 17-month extension would need to register for E-Verify;” the rule also confirms that “this rule will require the affected employers of students to verify the status of every new employee they hire using E-Verify.” Cap Gap - F-1 students who are the beneficiaries of approved H-1B petitions, but whose period of admission (including OPT and the 60-day departure period) expires before the H-1B start date, have a gap in authorized stay and employment known as a “cap gap.” The new rule provides an automatic extension of status and employment authorization for F-1 students with pending H-1B change of status (COS) petitions (a pending port of entry (POE) application will not be sufficient to trigger the cap gap benefit). It applies to all F-1 students with pending H-1B petitions, is not restricted to individuals holding degrees in designated STEM fields, and employers are NOT required to participate in E-Verify in order for their F-1 student employees t benefit from this portion of the new rule. Comment - As acknowledged in the new rule, most employers do not currently participate in the E-Verify program. The potentially high error rate (up to 7%) that is currently reported by DHS, together with the requirement that ALL new hires must be submitted for verification through this system are significant drawbacks that should be carefully evaluated by employers before committing to participate in E-Verify. T&S attorneys will monitor updates and post clarification of the new rule as the information becomes available.
LINKS - |
