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News Flash from Ross Silverman
March 16, 2016

DHS announces Final Rule on OPT for STEM Students and Cap-Gap Relief

As we mentioned last week, the Department of Homeland Security issued a Final Rule on Friday that will allow eligible F-1 students with science, technology, math, or engineering (STEM) degrees to extend their optional practical training (OPT) period for 24 months. The final rule, Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students, will take effect on May 10, 2016. At that time, USCIS will begin accepting applications for the 24-month extension.

Following are the key provisions of the final rule:    
  • Cap-Gap Relief: The rule re-authorizes the automatic extension of status and employment authorization until October 1 for certain F-1 students who are the beneficiaries of an H-1B petition subject to the annual H-1B cap.
     

  • STEM OPT Extension: The rule allows eligible F-1 students with 12 months of post-completion OPT to apply for a STEM OPT extension for an additional 24 months. This replaces the current 17-month STEM OPT extension. Three primary requirements must be met:
    1. Students must have graduated with a qualifying STEM degree from an accredited U.S. educational institution;
       
    2. The practical training opportunity must be directly related to the degree that qualifies the student for the STEM extension; and
       
    3. The employer must be enrolled in the E-Verify program.
  • Employer Criteria and Requirements: The rule increases oversight of the STEM OPT program through the implementation of reporting, evaluation and training requirements.
    • Employers must complete From I-983, which includes a detailed training plan and an employer certification of adherence;
    •  Employers must attest to the following:
      • The F-1 student will not replace a full- or part-time, temporary or permanent U.S. worker;
      • The F-1 student will be offered duties, hours and compensation commensurate with the terms and conditions of similarly employed U.S. workers;
      • The employer has sufficient resources and personnel available to provide appropriate training to the F-1 student; and
      • The training opportunity will help the student attain his or her training objectives.
    • Employers must fulfill an evaluation requirement at the end of 12 months and a final evaluation at the end of the 24-month OPT extension period.
    • Employers must submit training plan modifications for material changes to and deviations from the original training plan.
    • DHS is given the authority to conduct discretionary site visits with 48-hour advance notice.
  • F-1 Student Criteria and Responsibilities: The rule enhances student reporting obligations required to maintain F-1 status.
    • The student must submit the completed Form I-983 to the DSO before the school may recommend the 24-month STEM OPT extension.
    • The student must submit 6-month validation reports, as well as 12- and 24-month self evaluation reports.
    • The student cannot accrue more than an aggregate 150 days of unemployment during post-completion OPT and the STEM extension period.
    • The student cannot work less than 20 hours per week.
  • Additional provisions of the new STEM Extension:
    • Students may apply for a second STEM Extension after completing a second course of study in a STEM field. Please note that a student is limited to two STEM extensions, which includes any 17-month STEM extension.
    • Students may be eligible for the 24-month STEM OPT extension based on a previous degree if they are now in a period of post-degree OPT based on a new degree, with some limitations.
  • Transition Procedures: The rule outlines how pending and previously-approved STEM OPT extensions will be treated.
    • EAD applications for STEM OPT extension which were filed prior to and remain pending on May 10, 2016: USCIS will issue a Request for Evidence seeking documentation establishing the student's eligibility for a 24-month STEM extension.
    • EAD applications for STEM OPT extension filed prior to and approved before May 10, 2016: USCIS will issue an EAD valid for 17 months.
    • Current EAD for 17-month STEM OPT extensions valid prior to May 10, 2016: These cards will remain valid until the EAD expires or is terminated or revoked. Eligible students must meet all the requirements for the 24-month STEM OPT in order to apply for an additional 7-month STEM OPT. In order to extend a 17-month card for the full 24 months, the following conditions must be met:
      • Students can only apply between May 10, 2016 and August 8, 2016;
      • Students must apply within 60 days of the date the DSO enters the recommendation for 24-month STEM OPT; and
      • Students must have at least 150 calendar days remaining on their current 17-month STEM OPT Extension at the time the new EAD application is filed.
The Student and Exchange Visitor Program, a division of U.S. Immigration and Customs Enforcement which oversees F-1 students and the OPT program, has issued extensive guidance regarding this Final Rule which can be found on a dedicated website at https://studyinthestates.dhs.gov/stem-opt-hub.
 
The attorneys at Ross Silverman are available to guide students and employers through the new STEM OPT process. Please feel free to contact our office should you need assistance.

Please note that this News Flash is provided for informational purposes only.  It does not constitute legal advice and is not a substitute for consulting with an attorney.

 

Sincerely,
The Attorneys at Ross Silverman LLP