Visa Lawyer Blog

New OPT STEM Rule for F-1 Students Effective May 10, 2016

by

5162244018_51c361d054_z

The new replacement rule affecting the Optional Practical Training (OPT) program for F-1 students with degrees in science, technology, engineering, or mathematics (STEM), has been posted and is now available for inspection in the federal register. The new replacement rule will replace the previous 2008 rule and become effective beginning May 10, 2016.

The new rule authorizes F-1 STEM students pursuing a 12-month Optional Practical Training program in the United States to extend their ‘OPT’ status for a 24-month period. The 24-month extension replaces the 17-month STEM OPT extension previously available to STEM students. The 17-month STEM OPT extension will continue to be effective until May 9, 2016. The new 24-month extension applies only to F-1 STEM OPT students attending accredited United States institutions, whose employers participate in the U.S. Citizenship and Immigration Services E-verify program. Only students in a valid period of post-completion OPT may file for a STEM OPT extension. The 24-month extension, coupled with the 12-month period given with initial post-completion OPT, will give STEM students a period of 36 total months of practical training in their field. Amendments that come with the new rule include additional oversight and improvement of the program requiring formal mentoring and training plans by employers, a new STEM definition and Classification of Instructional Program Categories, provisions on previously obtained STEM degrees, Accreditation and Employer Visits, and OPT compliance. In addition, new provisions have been introduced relating to wage and protections for STEM OPT students and safeguards for American workers as described below.

The ‘Cap Gap’ provision previously available to F-1 STEM OPT students in 2008 remains in place. This provision allows students with a timely filed H-1B petition requesting a change of status, the benefit of automatically extending their F-1 status and employment authorization until October 1 of the H-1B visa fiscal year for which the student has applied. The Cap-Gap was created with intention of avoiding any disruption students might experience in their careers and personal life as a result of temporary gaps in their status.

The new rule introduces the following changes as compared to 2008 IFR:

  • Lengthened STEM Extension Period for OPT. The proposal would increase the OPT extension period for STEM OPT students from the 2008 IFR’s 17 months to 24 months. The proposal would also make F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level eligible for one additional 24-month STEM OPT extension.
  • STEM Definition and CIP Categories for STEM OPT Extension. The proposed rule would more clearly define which fields of study (more specifically, which Department of Education Classification of Instructional Program (CIP) categories) may serve as the basis for a STEM OPT extension. The proposal also sets forth a process for public notification in the Federal Register when DHS updates the list of eligible STEM fields on the Student and Exchange Visitor Program’s (SEVP’s) Web site.
  • Mentoring and Training Plan. The proposal would require employers to implement formal mentoring and training programs to augment students’ academic learning through practical experience, intended to equip students with a more comprehensive understanding of their selected area of study and broader functionality within that field.
  • Previously Obtained STEM Degrees. The proposal would permit an F-1 student participating in post-completion OPT to use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, as long as the student’s most recent degree was also received from an accredited educational institution. Additionally, in order for such a student to be eligible for the STEM OPT extension, the employment opportunity must be directly related to the previously obtained STEM degree.
  • Safeguards for U.S. Workers in Related Fields. To guard against adverse effects on U.S. workers, this proposal would require terms and conditions of a STEM practical training opportunity (including duties, hours, and compensation) to be commensurate with those applicable to similarly situated U.S. workers. In addition to requiring a related attestation in the Mentoring and Training Plan, an employer would also be required to attest that: (1) The employer has sufficient resources and trained personnel available to provide appropriate mentoring and training in connection with the specified opportunity; (2) the employer will not terminate, lay off, or furlough any full- or part-time, temporary or permanent U.S. workers as a result of providing the STEM OPT to the student; and (3) the student’s opportunity assists the student in attaining his or her training objectives.
  • School Accreditation and Employer Site Visits. The proposal would enhance the academic benefit and oversight of STEM OPT extensions by (1) generally limiting eligibility to students with degrees from schools that are accredited by an accrediting agency recognized by the Department of Education; and (2) clarifying DHS discretion to conduct employer on-site reviews at worksites to verify whether employers are meeting program requirements, including that they possess and maintain the ability and resources to provide structured and guided work-based learning experiences.
  • Compliance Requirements. In addition to reinstating the 2008 IFR’s reporting and compliance requirements, the proposal would revise the number of days that an F-1 student may remain unemployed during the practical training period. The current program allows a student to be unemployed up to 90 days during his or her initial period of post-completion OPT, and up to an additional 30 days (for an aggregate of 120 days) if the student receives a 17-month STEM OPT extension. The proposed rule would retain the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allow an additional 60 days (for an aggregate of 150 days) for students who obtain a 24-month STEM OPT extension. 

What has not changed?

  • E-Verify and Reporting Requirements for STEM OPT Employers.The proposal would require STEM OPT employers to be enrolled in USCIS’ E-Verify program and to report certain changes in the STEM OPT student’s employment.
  • Reporting Requirements for STEM OPT Students.The proposal would require STEM OPT students to report to DHS any changes to their names or addresses, as well as any changes to their employers’ names or addresses. Students would also be required to periodically verify the accuracy of this reporting information.
  • Cap-Gap Extension for F-1 Nonimmigrants with Timely Filed H-1B Petitions and Requests for Change of Status.The proposal would include the 2008 IFR’s “Cap-Gap” provision, under which DHS would temporarily extend an F-1 student’s duration of status and any current employment authorization if the student is the beneficiary of a timely filed H-1B petition and requests a change of status. The Cap-Gap extension would extend the OPT period until October 1 of the fiscal year for which the H-1B visa is being requested.

Adjudication for Pending Applications for 17-month extensions

DHS will continue to accept and adjudicate 17-month STEM OPT extensions through May 9, 2016 pursuant to 2008 IFR. Pending applications for STEM OPT extension before DHS, submitted prior to the effective date of this new rule, will be adjudicated according to the regulations existing at the time the application was submitted. If approved, such applicants would receive a 17-month extension.

For applications filed following the effective date of a final rule with a different STEM OPT extension duration, eligible students can:

  1. Request the balance of the modified extension up to 120 days before the end of the 17-month extension period; or
  2. Students with a pending application for a 17-month extension may withdraw their application and file a new one to receive a 24-month extension.
  • 17-month STEM OPT EADs issued prior to May 10, 2016 will remain valid until the EAD expires or is terminated or revoked.

Pending Applications to be issued RFEs

Pending applications that were received prior to the effective date of the final rule, will be issued Requests for Evidence (RFEs) beginning May 10, 2016. The RFEs are intended to give students an opportunity to demonstrate their eligibility for the 24-month extension without paying additional fees and having to re-file their applications to qualify for the new extension. Students can expect to receive RFEs that request documentation that establishes that the student is eligible for the new extension, such as Form I-20 Certificate of Eligibility, endorsed by the authorized representative on or after May 10, 2016 recommending the student for the new extension.

In order to qualify for 17-month extensions, students must satisfy the following requirements:

The STEM OPT student must properly file an Application for Employment Authorization with USCIS, along with applicable fees and supporting documentation, on or before August 8, 2016, and within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record. DHS believes that the 90-day window for filing such applications provides sufficient time for students to submit a required Training Plan, obtain the necessary Form I-20 Certificate of Eligibility and recommendation from the student’s DSO, and fulfill other requirements for the 24-month extension.

Students must have at least 150 calendar days remaining prior to the expiration of the 17-month STEM OPT EAD at the time the Application for Employment Authorization is filed. This 150-day period guarantees that a student who obtains an additional 17-month extension will have at least one year of practical training under the enhancements introduced in this rule, including site visits, reporting requirements, and statement and evaluation of goals and objectives. For students who choose to seek an additional 17-month extension, the new enhancements apply upon the proper filing of the Application for Employment Authorization requesting the 17-month extension.

The student must meet all the requirements for the 24-month STEM OPT extension as described in 8 CFR 214.2(f)(10)(ii)(C), including but not limited to submission of the Training Plan to the DSO. STEM OPT students applying for this additional 17-month extension must be in a valid period of OPT, but are not required to be in a valid period of 12-month post-completion OPT authorized under 8 CFR 274a.12(c)(3)(i)(B) as would normally be required for a STEM OPT extension request.

For more information about the 24-month extension for STEM OPT students please contact us for a consultation.