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ICE Revises SEVP Guidance for F-1 Optional Practical Training and H-1B Cap Gap Issues

Immigration and Customs Enforcement’s (“ICE”) Student Exchange Visitor Program (“SEVP”) recently revised its policy guidance regarding Optional Practical Training (“OPT”), STEM OPT for F-1 students, and H-1B Cap Gap relief. The new policy guidance issued on April 23, 2010, supplements the previous April 2008 guidance, including the following key points:

1. F-1 Students eligible for OPT

Establishes a limit on the number of days students may apply for post-completion OPT to 60 days after the student’s program end date, and establishes a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status. For students on regular post-completion OPT or an automatic extension due to the cap gap provisions, the limit is 90 days. Students with an approved 17 month extension (STEM OPT) will receive another 30 days of unemployment time for a total of 120 days over the entire period of post-completion OPT.

The STEM designated degrees accepted by U.S. Citizenship and Immigration Services (“USCIS”) are posted and updated on the Immigration and Customs Enforcement web site at http://www.ice.gov/sevis .

2. Limits on Periods of Unemployment During a Period of Authorized OPT

Deletes 10 day exceptions to the time that counts for unemployment during OPT at the EAD start date and between jobs. The Student and Exchange Visitor Program (“SEVP”) will need approval for such exceptions through a future proposed rule. Each day, including weekends, during the period OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. OPT authorization begins on the employment start date shown on the student’s EAD.

3. Relation of Student OPT Employment to Degree

SEVP recommends that a student maintain evidence for each job documenting the position held, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager, and a description of the work. If it is not clear from the job description that the work is related to the student’s degree, SEVP recommends that the student obtain a signed letter from the company’s hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.

4. Travel During the H-1B Cap Gap Period

A student must have a valid Employment Authorization Document (“EAD”) in order to travel internationally during post-completion OPT. If the EAD card has expired, a student may choose to leave the U.S. and obtain a H-1B visa to return to the U.S. for the start of H-1B employment.

SEVP recommends that a student not travel outside the U.S. during the cap gap extension, if possible, since USCIS will consider a change of status application abandoned if the applicant leaves the country while the application remains pending. Please send questions relating to the changes in OPT and the H-1B Cap Gap period to Jacqueline Lentini McCullough, jacki@lentinivisas.com, or 630-262-1435.