EXTENSION OF OPT PERIOD – A DOUBLE BENEFIT
-Sudhir Shah, Advocate, Mumbai

USA Immigration laws are enacted to restrict immigration and not to encourage migration. To stay in USA permanently laws provide filing of petition on the basis of family relations or procurement of employment. It provides for immigrant visas for those who possess extraordinary capability or seek Political Asylum or Refugee status. 55,000 immigrant visas are also granted every year through Visa Lottery Programme. Yet the demand of skilled and unskilled workers in USA is so large that visas provided under these categories are in sufficient. H-1B visas therefore are specially created which permit US employers to invite foreign gradates to work for them for a period of 6 years. They are required to pay salary at the market rate prevailing in USA. However they too also restricted by 65,000 yearly quota and this number is not sufficient to meet the demand. Bill Gates and other USA industrialists therefore have been consistentantly pressurizing USA Govt. to increase the quota numbers of H-1B visas.

Immigration Laws permit Foreign students who graduate from USA Universities for a period of 1 year. This period is known as Optional Practical Training period. Students who are working as trainee are not paid salary at the rate which is paid to other people doing the same job. USA employers are therefore happy to provide jobs to foreign graduates for 12 months during their OPT period. However, 12 month is insufficient to commence and complete any kind of work. Besides that the need for graduate workers is also huge.

The USA Govt instead of increasing the H-1B quotas, to fill in the growing demand of graduate workers have with effect from 4th April 2008 increased the OPT period of foreign graduate students from 12 to 29 months. This new OPT Rule benefits foreign students because it allows them to stay in USA and work for additional 17 months. American Employers are also happy as they would now be in a position to employ foreign graduates for a total period of 29 months at a salary less than the prevailing market rate and without undergoing the hassles of filing H-1B petitions and spending hefty amount towards filing fees and Attorneys costs.

The new OPT rule makes 2 major changes. Foreign students with degrees in the fields of Science, Technology, Engineering and Mathematics (STEM) are eligible to apply for extensions of their 12 months Optional Practical Period by additional 17 months. Any foreign student on OPT seeking a change of status from F-1 to H-1B may receive automatic extension of their status and employment authorization till October 1st, the time when H-1B status holders upon their petition being approved can start working for their USA employers or till their H-1B applications is denied.

It is estimated that almost 12,000 foreign graduate students will take advantage of the new OPT Rule. Ofcourse US Employers too would take advantage of employing these 12,000 students at a salary lesser than the prevailing market rate for 29 months. A double benefit.