• Adds the option for an additional 17 months of OPT, for a total of 29 months for students with degrees in certain Science, Technology, Engineering, and Math (STEM) fields.
• Creates H-1B “cap gap” coverage to allow certain students who are in the H-1B change of status process to remain in the U.S. and work during the “gap” created by certain standardized dates in the H-1B filing system.
• Sets limits on how long someone can be unemployed during the OPT period and maintain F-1 status.
• Requires students, schools, and employers to do much more reporting regarding the student’s employer name and address and the students employment status.

• You must already have and be in the initial 12-month OPT status. You cannot get the full 29 months approved up front.
• Your degree must be in specific Science, Technology, Engineering, or Math (STEM) fields as defined in the regulation per a Department of Education (DoEd) CIP code list.
• Your employer must be participating in the E-Verify electronic employment verification program.

CIP codes are a U.S. Department of Education (DoEd) categorization of educational programs in the U.S. Universities assign CIP codes to degrees according to the DoEd list. The federal government and educational programs use the CIP codes for a wide array of reporting and record-keeping purposes.

First look at the list of eligible degrees and CIP codes in the regulations. If your general degree field is not listed, then you are not eligible. For example business, law, economics, and many other fields are not on the list. Even if your general degree field is listed, CIP codes ending in “99” are not eligible.

At present the list of CIP codes that Duke has given to the DoEd regarding Duke degrees is not easily available. CIP codes historically have been a reporting tool and not an item of general interest to the Duke community. Some “STEM” Duke degrees have a “99” ending on the CIP code. Some interdisciplinary degrees may be partly in an eligible field and partly not and listed under a CIP code that is not eligible. Other colleges and universities are reporting similar “99” and interdisciplinary coding problems.

The Office of the Registrar, the SISS Office, and the International Office have been discussing ways to reflect accurate information in our formal institutional records and reporting while giving our students the broadest possible opportunities. We may be changing some CIP codes and we will be asking DHS to broaden the CIP code eligibility list. When we have more information on Duke CIP codes we will share it.

In the meantime, if

• you already have OPT and
• your employer is an E-Verify participant and
• your general degree field is on the CIP code list, then

contact your adviser in the International Office and we can look up your CIP code for you.

Some degrees that are not on the eligible CIP code list have heavy computer or mathematical course loads and students have asked if this heavy “STEM” component would make them eligible. Eligibility is based on degree field, not on transcript listings. Having taken many courses in science or math will not make you eligible if your degree is not on the eligible CIP code list.

The easiest way to know if your employer is in E-Verify is to ask someone in the Human Resources or Payroll department of your employer. E-Verify employers will certainly know if they participate. E-Verify affects all new hires for an employer, not just OPT students. If your employer does not participate, it may or may not be willing to adopt E-Verify to accommodate a few OPT employees. For more information on E-Verify that you can read and share with your employer see the DHS web site.

DHS Press Release on E-Verify

Note the link at the bottom of the page to the E-Verify home page.

If your employer is not in E-Verify and is unwilling to participate, then you cannot get the extra 17 months to work for that employer; you will have to look for another employer or end your OPT at 12 months.

First remember that the “cap gap,” the time between the end of OPT, usually in June or July, and the beginning of the H-1B on 01 October, applies only to those who work for “cap subject” employers. Most businesses are “cap subject;” most colleges and universities and some research facilities are “cap exempt.”
If you work for a cap subject employer and you want to benefit from the cap gap coverage, all of the following must be true:

• You already hold or will receive an Employment Authorization Document (EAD) work permit for postcompletion OPT and
• Your employer must file for H-1B for you before your OPT expires and
• You must be one of the lucky winners of the H-1B lottery.

If all of these elements are true, then you must work with your employer to get the H-1B approved.

If your employer has already told DHS that you will apply for the H-1B abroad and you were planning to wait outside the U.S., you can now convert that request to a change of status and stay in the U.S. and work through the summer. You must work with your employer to do this.

The rule sets the aggregate unemployment time at 90 days for 12 months of OPT and 120 days for 29 months of OPT. Aggregate means that you add up individual days, even if they are spaced apart. Example: Your OPT starts 15 May. You get a job that starts 01 July. You have aggregated 47 days of unemployment. You work until 31 December and the job ends. Your next job starts on 01 March, but by 12 February you will have aggregated 90 days of unemployment.

However, in conversations with NAFSA (though not in the language or the rule) DHS indicated that for the first 12 months of OPT self-employment from “gig to gig” or volunteering in your degree field could be considered employment for the purpose of OPT. We will need more conversation with DHS on this topic but this approach is encouraging.

The rule is not clear on who will be counting this 90/120-day time and what action the DHS will take when it is reached, but you must report these interruptions in employment. (See 7 below regarding reporting.) DHS could deny future benefits, deny OPT extension, or take other action. In conversations with NAFSA, DHS has confirmed that it will not count any unemployment days aggregated before 08 April 2008, the effective date of the rule.

Students should be mindful of the rule for the future, keep records of self-employment and volunteer activities, and manage their employment carefully.

You are already required to report changes of address within 10 days of any move. We have instructions for that on the International Office web site under Address Update

We will be updating this web site to allow you to make all of the following reports easily and electronically through the “Address Update” portal, but that will take a little time.

For now, please make all of the required reports below by sending an e-mail to
VISAHELP@MC.DUKE.EDU
In the subject line put
OPT UPDATE REPORT

After you report to Duke, Duke must report to DHS through SEVIS.
Under the current rule:

• During the first 12 months of OPT and during the additional 17 months of OPT you must report, within 10 calendar days of the event,
  • legal name changes
  • address changes
  • employer name changes (not obvious in the rule, but confirmed by DHS)
  • employer address changes (not obvious in the rule, but confirmed by DHS)
  • interruption in employment.
• During the additional 17 months of OPT you must also make a report every 6 months confirming valid and accurate information on your name and address, your employer’s name and address, and any loss of employment You must submit these reports within 10 business days (not counting Saturday, Sunday, or federal holidays) of the end of the reporting period. Example: If your 12 months of OPT ends 15 May and your additional 17 months begins on 16 May, then your first 6-month validation period ends 15 November and your validation report is due 10 business days later. Your second 6-month period would end 15 May with the report due 10 calendar days later accordingly.

Your employer must also report to the school within 48 hours of termination of your employment, and the school must report that termination in SEVIS. There is no established process for the employer to report to the school.

We are pleased so see this much progress in the OPT rules and will do all that we can to help you take advantage of the new options.

Please know that we are also aware that the very short CIP code list of only STEM degrees and the E-Verify employer requirement are serious obstacles, and that the unemployment rule causes serious concern. Duke will be working with other colleges and universities and with higher education associations to advocate for expansion of the eligibility list, for reconsideration of the E-Verify employer requirement, and for clarification on the 90/120-day unemployment rule. Duke will also be submitting a “comment” on the rule in which we will address the areas of concern.