Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Department of Homeland Security ("DHS") recently issued its long-awaited F–1 nonimmigrant student visa regulations on optional practical training (“OPT”) for certain students with degrees in science, technology, engineering, or mathematics (“STEM”) from U.S. institutions of higher education. The final rule allows such F–1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (also known as STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students, whereby the STEM OPT Employment Authorization Document (“EAD”) issued will be valid for 24 months instead of 17 months.
The rule also improves and increases oversight over STEM OPT extensions by, among other things, requiring the implementation of formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. There is more employer involvement than in the past. As with the prior 17-month STEM OPT extension requirement, the rule authorizes STEM OPT extensions only for students employed by employers who participate in E-Verify. The rule also includes the ‘‘Cap-Gap’’ relief first introduced in a 2008 DHS regulation for any F–1 student with a timely filed H–1B petition and request for change of status.
This rule goes into effect on May 10, 2016.
Basic Requirements
|
Requirements |
Previously |
New |
|
E-Verify employer |
X |
X |
|
STEM degree |
X |
X |
|
Training Plan from prospective employer |
|
X |
|
STEM degree from accredited schools |
|
X |
|
DHS site visits |
|
X |
|
Additional reporting |
|
X |
|
Employer must attest that (1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity helps the student attain his or her training objectives. |
|
X |
Current Students on the 17-Month STEM OPT
Visas for students with valid, unexpired, 17-Month STEM OPT EADs issued before May 10, 2016, will remain valid until that EAD expires or is terminated or revoked. In addition, certain students with time remaining on their current 17-month STEM OPT EAD can apply for an additional seven months of STEM OPT EAD (to benefit from the full 24 months under the new rule), if at the time of filing for the additional seven months, the students have at least 150 calendar days remaining on their current STEM OPT EAD. Please note that in order to file for the additional seven months of STEM OPT EAD, the same requirements would apply as for those who would be applying for a whole 24 months of STEM OPT EAD.
