Law Office of Leila Freijy PLLC
Immigration & Compliance Law 
24-mo. STEM EAD rule to be published 03/11/2016
  
On Friday, March 11, 2016, the Department of Homeland Security (DHS) will publish its final rule regarding expanding the F-1 STEM OPT extension to 24 months, from the existing 17 months.  The new rule becomes effective on May 10, 2016.  This means that F-1 students may not begin applying for 24-mo. STEM OPT extensions before this date.  This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students.

All F-1 students will still be entitled to 12 months of OPT at each education level (bachelor's, master's, Ph.D.)  In addition, F-1 students in STEM fields will be eligible for up to two (2) additional 24-mo. extensions during the course of their academic careers in the U.S.  So, an F-1 student who completes bachelor's, master's and Ph.D. degrees in STEM fields in the U.S. will be entitled to 12-mo. of OPT following all three levels and will also be entitled to an additional 24-mo. extension following two of the levels.

Who is impacted by the new rule?

DHS has identified five categories of students who will be eligible for STEM OPT extensions under the final rule:
  1. Those currently eligible based on a recently obtained STEM degree.
  2. Those eligible based upon a STEM degree earned prior to their most recent degree.
  3. Those eligible for a second STEM OPT extension.
  4. Those eligible based on potential changes to the current STEM list.
  5. Those eligible to increase a currently authorized STEM OPT extension period from 17 to 24 months.
Requirements for 24-mo. STEM OPT extensions

  1. The F-1 student must have completed a degree in a STEM field in order to be eligible for the 24 mo. extension.
  2. The degree must have been received from an accredited university.
  3. The employer must be registered, and in good standing, with E-Verify.
  4. F-1 students must prepare and execute a formal training plan using new USCIS Form I-983 (which will be available on www.uscis.gov).  The training plan must identify learning objectives and a plan for achieving those objectives.  At the time of writing Form I-983 is not available on the USCIS web site, but should be made available over the next several weeks.
  5. Every 6 mo. the F-1 student must contact the DSO at the university to validate certain information: student's legal name, student's address, employer name and address, current employment status (e.g. employed or unemployed).
  6. The rule imposes an annual self-evaluation requirement during the 24 mo. STEM extension period whereby the student must report to the DSO regarding progress with respect to the training plan that was established.  Consequently, there will be a mid-point evaluation and a final evaluation for the STEM OPT extension period.  The evaluations need not be signed by the student's immediate supervisor.  They may be signed by any appropriate individual at the employer's organization with signing authority.  The annual self-evaluations are not intended to replace or duplicate an employer's general performance appraisal process.  They are to confirm that the student is making progress toward the training objectives.  The student is responsible for ensuring that the DSO receives the 12-mo. evaluation and final evaluation no later than 10 days following the conclusion of the reporting period and the conclusion of the practical training opportunity. There is no self-evaluation requirement during the initial 12-mo. OPT period.
  7. The student and employer must report changes in employment status to the DSO, including the student's termination/departure from the employer within 5 business days.  Under the existing rule, the student and employer are required to notify the DOS of the student's termination within 2 business days.  This practice should continue until the final rule becomes effective on May 10, 2016.
  8. The student and employer must report to the DSO any material changes/deviations from the student's formal training plan.  These material changes include: a change in the employer's FEIN resulting from corporate restructuring, reduction in the student's compensation and a significant decrease in the student's hours (including a decrease below the 20-hour minimum employment requirement under OPT).
  9. The new rule imposes the following additional attestations on the employer: (a) Employer has sufficient resources and trained personnel available to provide appropriate training, (b) the F-1 student will not replace a full- or part-time, temporary or permanent U.S. worker and (c) the training opportunity helps the student attain his/her training objectives.
  10. Duties, hours and compensation offered by the employer must be commensurate with those provided to the employer's similarly situated U.S. workers.  While there is no "prevailing wage" requirement in the new rule, the F-1 student's wage will be listed in Form I-983 (the training plan), which will be reviewed by the DHS to monitor whether F-1 students are being fairly compensated.
Unemployment limitation

Up to 90 days of unemployment is permitted during the initial 12-mo. period of post-completion OPT.  The new rule permits up to an additional 60 days of unemployment during the 24-mo. STEM OPT extension period, for a total of 150 days during the overall 36-mo. STEM OPT period.  Currently, only an additional 30 days of unemployment is permitted during the 17-mo. STEM OPT extension period.

Cap-Gap protection

The DHS will continue to extend an F-1 student's duration of status (D/S) and any current OPT employment authorization if the student is a beneficiary of a timely-filed H-1B petition and change-of status request pending with, or approved by, the USCIS.  Cap-gap protection extends the OPT period until the beginning of the new fiscal year for which the H-1B status is being requested (e.g. through September 30).

If the petitioning employer withdraws the H-1B petition upon which a student's cap-gap period is based, the student's cap-gap period will automatically terminate and the student will enter the 60-day grace period to prepare for departure from the U.S.

Site visits 

The new rule provides for site visits.  The DHS will typically provide a 48-hour notice to the employer before conducting a site visit unless it receives a complaint or other evidence of non-compliance with the STEM OPT extension regulations in which case it may conduct a site visit without giving prior notice.

STEM fields defined

The 24-mo. STEM OPT extension is only available to F-1 students who have completed a degree in a STEM field.  A STEM field is one that the U.S. Department of Education defines as in the "engineering, biological sciences, mathematics and physical sciences, or a related field."  The new rule defines "related fields" as those involving research, innovation or development of new technologies using engineering, mathematics, computer science, or natural sciences (including physical, biological and agricultural sciences).

The complete list of STEM qualifying degree program categories will be available on the SEVP web site at http://www.ice.gov/sevis.  At the time of writing, the SEVP web site only lists STEM fields recognized as of May 2011.

STEM OPT extensions may be based on an earlier degree

A STEM OPT extension may be based on a student's most recent academic degree or may even be based on an earlier degree earned, provided that the following requirements have been met:
  1. The prior degree was obtained from an educational institution that is accredited and SEVP-certified at the time that the STEM OPT extension application is made.
  2. The training opportunity is directly related to the previously obtained STEM degree.
  3. The prior STEM degree has been actually granted (i.e. thesis is complete).
  4. The prior degree must have been received within the 10 years preceding the student's STEM OPT application date.
  5. The prior degree cannot have been conferred by an overseas campus (e.g. New York University Abu Dhabi).
Thesis requirement

An F-1 student who has completed all other course requirements for their STEM degree may be eligible for a 24-mo. STEM OPT extension notwithstanding the continuing need to complete the thesis.  However, this does not apply with respect to a previously earned STEM degree if the student seeks to base the STEM extension on such a degree.

STEM OPT extensions not available for volunteer opportunities

The 24-mo. STEM OPT extension is only available where there is a bona fide employer-employee relationship, not in cases where the employee is volunteering.

How to apply for a 24-mo. STEM OPT extension
  1. The USCIS will not accept applications for 24-mo. STEM OPT extensions prior to May 10, 2016.  The USCIS will continue to accept applications for 17-mo. STEM OPT extensions through May 9, 2016. 
  2. Before a DSO will recommend an F-1 student for a 24-mo. STEM OPT extension, the student and employer must prepare a training plan using Form I-983 and submit it to the DSO for approval.  If approved by the DSO, the DSO will recommend the STEM OPT extension on Form I-20 and will update the student's SEVIS record to reflect this.
  3. The student must properly file Form I-765 with the USCIS, including all applicable supporting exhibits, within 60-days of the date the DSO enters the recommendation for the STEM OPT extension into the SEVIS record.
Please Note:
17-mo. STEM OPT extensions are still required to be filed with the USCIS within 30-days of the date the DSO enters the recommendation for the STEM OPT extension into the SEVIS record.

What happens to 17-mo. STEM OPT extensions that are pending?

STEM OPT extensions that are currently pending or that will be filed between now and May 9, 2016 will be treated as follows:

STEM OPT extension applications that are approved by the USCIS before May 10, 2016 will be approved for a 17-mo. period; however, those students will have the opportunity to apply for an additional 7-mo. STEM OPT extension.  More about this below.

STEM OPT extension applications that are still pending with the USCIS on May 10, 2016 will be issued RFEs to allow these students to effectively amend their applications to demonstrate eligibility for a 24-mo. extension without incurring an additional fee or having to re-file.

Demonstrating eligibility will entail completing a Training Plan using Form I-983, submitting it to the DSO for approval and then receiving a new I-20 from the DSO endorsed on or after May 10, 2016 recommending the student for a 24-mo. STEM OPT extension.

What happens to F-1 students who already have a 17-mo. STEM EAD?

As a transitional measure, starting on May 10, 2016 certain students will have a limited window in which to apply for an additional 7 months of OPT.

In order to be eligible, a student must meet the following requirements:
  1. The student must properly file Form I-765 with the USCIS, including all applicable supporting exhibits, within 60-days of the date the DSO enters the recommendation for the STEM OPT extension into the SEVIS record.  This will entail paying the I-765 filing fee again.
  2. This application must be received at the USCIS between May 10, 2016 and August 8, 2016.
  3. The student must have at least 150 calendar days (5 mo.) remaining prior to the expiration of his/her 17-mo. STEM OPT.  This ensures that such students will have at least 1 full year of practical training under the new rule, including: preparation of training plan, site visits and reporting requirements.
Clearly, the transitional measure will not provide all existing students working under a 17-mo. STEM EAD the opportunity to apply for an additional 7-mo. EAD.

As indicated previously, the final rule will be published on Friday, March 11, 2016.  This summary was prepared based on my review of an advance copy of the final rule.  This is all the information that is available at this time.  As the USCIS move to implement the new rule by May 10, 2016, more information will become available on the USCIS web site (www.uscis.gov) and the SEVP web site (www.ice.gov/sevis).
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If you have any questions or concerns about the information provided in this email, please don't hesitate to contact me.

 

Sincerely,

 


Leila Freijy
Law Office of Leila Freijy PLLC
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Leila Freijy, Esq.
3150 Livernois Rd #103
Troy, MI 48083
248.817,8280
248.287.4115 (fax)

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