Effective 08 April 2008, students in any field who have an H-1B petition with a start date in the future can apply for an H-1B “Cap Gap”. This provides student work authorization to continue working until the H-1B takes affect. Degree recipients in certain STEM fields (Science, Technology, Engineering, Mathematics) can apply for a 17-month OPT extension if specific criteria is met.

For an excellent and in depth discussion of the rule and links to the rule, see the NAFSA:Association of International Educators web site at
http://www.nafsa.org/regulatory_information.sec/29_month_opt_rule_updates

REQUIREMENTS FOR THE H-1B CAP-GAP EXTENSION

1. Students must be the beneficiary of an H-1B that is timely filed by a cap subject employer, has a start date of October 1, and requests a change of status.
2. Students must be in valid F-1 status.
3. Students must continue to report all change of name and address, and interruptions of employment while on the cap-gap extension.

H-1B CAP-GAP EXTENSION PROCESS

The extension should be automatically updated in SEVIS. However, the automatic updates are not working 100% of the time. Students will need to submit the following documents to your Visa Services Advisor if you want a Form I-20 printed reflecting the cap-gap extension.

1. A copy of the I-797 H-1B receipt or approval notice or a copy of the wait list letter from USCIS to the employer.
2. Copy of most recent Form I-20 (page 1 and 3, not page 2).
3. Copies of passport info page(s).
4. Copy of visa stamp.
5. Copy of front and back of I-94 card.
6. A FedEx or DHL account number or complete waybill slip or prepaid US mail envelope in order to return the new I-20 to you, along with the address of where to send the new Form I-20. Or you could make arrangement for someone to pick it up on your behalf. Our office can no longer accept cash, checks or credit card numbers

REQUIREMENTS FOR THE 17-MONTH STEM EXTENSION

1. The employment must be directly related to the student’s field of study.
2. Students must be currently engage in post-completion OPT.
3. Students must have graduated with one of the qualified STEM degrees with a qualifying CIP code. See question #3 for more details.
4. The employment must be with an employer who is in the E-Verify system.
5. The employer must agree to report the termination or departure of an OPT employee to the Duke Visa Services.
6. The request for the 17-month extension must be submitted to USCIS before the current OPT EAD expires.

17-MONTH STEM EXTENSION PROCESS

Since most students who are applying for the special 17-month extension are not currently in the Durham area, you can mail your request to your Visa Services Advisor for processing. You will need to mail the following to Visa Services.

1. Completed Original Signed Forms I-538 and I-765. Use the code (c)(3)(C) in item 16 of the I-765. You must also complete the degree and employer information in item 17. You will need to get the E-Verify information directly from your employer.
2. 2 Original Passport-style Photographs (see photo specification).
3. Copies of all Forms I-20 you have ever had (page 1 and 3, not page 2).
4. Copies of passport info page(s) including expiration date.
5. Copy of visa stamp.
6. Copy of front and back of I-94 card.
7. Copy of your Duke degree and Duke transcripts reflecting your field of study
8. Check or money order for $340 made payable to: U.S. Dept of Homeland Security.
9. A statement from the employer regarding how the employment relates to the STEM field may help in the adjudication (optional).
10. REQUIRED: A FedEx or DHL account number or complete waybill slip or prepaid US mail envelope in order to return the new I-20 to you. Along with the address of where to send the new Form I-20. Or you could make arrangement for someone to pick it up on your behalf. Our office can no longer accept cash, checks or credit card numbers.

The following FAQ will help you determine whether and how you might benefit, how to take advantage of those benefits, and what to do if you cannot benefit now.

Q1. What parts of OPT are generally affected?
A1. The rule does the following:

• 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 process.
• Sets limits on the duration of unemployment during the OPT period and maintain F-1 status.
• Requires students, schools, and employers to do more reporting regarding the student’s employer name and address and the student's employment status.

Q2. Who is allowed to have the extra 17 months for a total of 29?
A2. To receive this benefit ALL of the following must be true.

• 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.

Q3. What is a CIP code? How do I know if my degree has an eligible CIP code? What if my degree CIP code is not on the “eligible” list? How can I get my CIP code changed to make me eligible? I took a lot of science courses; is that enough to be eligible for the extra 17 months?
A3. 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. A current listing can be found at: http://www.ice.gov/sevis/stemlist.htm.

If your degree field is not listed, then you are not eligible. For example business, law, economics, and many other fields are not on the list. If you have had a Form I-20 issued recently, you should find your CIP code now printing on page 3.
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 their CIP codes, but codes ending in “99” are not eligible for “STEM” extensions. 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.
At Duke, the Office of the Registrar, the SISS Office, and academic departments determine which CIP codes are assigned to degree programs.
If:

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

contact your adviser in Visa Services and we can look up your CIP code for you.
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.

Q4. I currently hold OPT and my degree is in one of the eligible CIP codes. Now, how do I know if my employer participates in E-Verify? If it does not participate, how do I get my employer to sign up quickly so that I can qualify for the additional 17 months to continue work? If I need to look for an employer that participates in E-Verify how do I do that? If my employer will not adopt E-Verify, what can I do?
A4. 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 at:
http://www.uscis.gov/files/pressrelease/everify12022008.pdf
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.

Q5. How does the “cap gap” extension help me?
A5. 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 post-completion 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.

Q6. Is it true that 90 days of unemployment time can put me out of status? What if I already have 90 days of unemployment during my OPT? What if my degree is in art, music, performance or similar fields where I might be “self-employed” and moving from performance to performance or commission to commission?
A6. 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 Q7 below regarding reporting.) DHS could deny future benefits, deny a 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.

Q7. How much more reporting must I do and when? What will the school and employer report?
A7. You are already required to report changes of address within 10 days of any move. We have instructions for that on Visa Services web site at
http://www.internationaloffice.duke.edu/AddressUpdate.html
You may make all of the following reports easily and electronically through the “Address Update” portal. If you experience any difficulty doing so, please send 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
  • employer address changes
  • 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.

Q8. I am delighted, furious, confused ….. by all of this.
I have a STEM degree and an eligible CIP code and will get more OPT time – hooray!
I won the H-1B lottery and the “cap gap” provision lets me work through the summer until my H-1B starts in October– thank heavens!
I have a STEM degree but not an eligible CIP code – this is just ridiculous and wrong and I want this fixed for me.
I do not have STEM degree – this feels like discrimination against me and I want this fixed for me.
I am a little worried about the unemployment days rule and about all of the required reporting. I might be out of work through no fault of my own or I might forget to make one of the many reports that are required.
A8. 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 can be real 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.