DHS Issues Final Rule on F-1 STEM OPT Extensions

Overview

On Friday, March 11, 2016, the U.S. Department of Homeland Security (DHS) issued its final rule on Optional Practical Training (OPT) extensions for F-1 students with science, technology, engineering and math (STEM) degrees from U.S. institutions of higher education.  Previously, F-1 STEM students who had been granted 12 months of OPT work authorization could, in certain circumstances, extend their OPT period by an additional 17 months (the “STEM OPT extension”). This new rule extends the STEM OPT extension from 17 months to 24 months.  As with the prior 17-month STEM OPT extension, the new rule requires that STEM OPT extension applicants are employed with employers who participate in E-Verify.  As described below, the new rule also adds additional requirements for STEM OPT extension eligibility, including a formal training plan agreed to by both the employer and F-1 student and employer reporting obligations.

The new rule will go into effect May 10, 2016.  To be eligible for the STEM OPT extension under the new rule, the STEM degree must be awarded by an accredited U.S. college or university and be in a field recognized as a STEM field by DHS.  A student can base the STEM OPT extension on their most recently earned STEM degree, or on a previously earned U.S. STEM degree, subject to additional requirements.  A student may file for a STEM OPT extension only if they are in a valid period of OPT at the time of filing.

Transition to New Rule

The 17-month STEM OPT regulations remain in force through May 9, 2016.  Any 17-month STEM OPT Employment Authorization Document (EAD) that is issued prior to May 10, 2016 will remain valid until the EAD expires (or is terminated or revoked).  Starting on May 10, 2016, students with a 17-month STEM OPT EAD will be able to apply for an additional 7 months of OPT, so that they can obtain the benefit of this new rule.  The student must properly file for a new EAD with USCIS, along with applicable fees and new required supporting documentation, on or before August 8, 2016 and within 60 days of the date that the Designated School Official updates the SEVIS record.  The student must have at least 150 calendar days remaining prior to the expiration of the 17-month STEM OPT EAD at the time the EAD application is filed with USCIS. For any STEM OPT application that is currently pending with USCIS on May 10, 2016, USCIS will issue a Request for Evidence to the student to provide an opportunity for the student to amend their application to demonstrate their eligibility for the 24-month extension under the new rule.

Additional Requirements and New Employer Obligations

The new rule also includes new employee and employer requirements and oversight provisions. Specifically, the new rule requires that students and employers prepare and submit a formal training plan that describes learning objectives for the student and identifies how the student will achieve these objectives.  This plan must document a performance evaluation process, and describe methods for oversight and supervision of the student.  This plan will be submitted on USCIS’s new Form I-983.  On the Form I-983, the employer is required to attest to certain terms and conditions of employment, including that the employment helps the student attain his or her training objectives, the student on the STEM OPT extension will not replace a full-time or part-time temporary or permanent U.S. worker, and the terms and conditions of employment are applicable to similarly situated U.S. workers.

The new rule also adds new reporting requirements for students and their employers, including periodic validations by the university based on data provided by the F-1 student and an annual evaluation of the training plan, to be prepared by the student and signed off by the employer.  The student and employer are required to report any changes in employment status, including termination or departure; and any material changes to, or material deviation from, the student’s formal training program.

To ensure compliance with program requirements, the new rule also provides for DHS site visits to employer locations in which STEM OPT students are employed. The DHS will generally give advance notice of such visits but may also conduct an unannounced visit if triggered by a complaint or other evidence of violation of the regulations.

Lastly, the new rule also expands the amount of time from 120 days to 150 days that a student may be unemployed while in OPT status.  Students may not be unemployed for an aggregate of more than 150 days during the total OPT period (for the 12 months of initial OPT plus the 24-month STEM extension period).

General information is available from the Department of Homeland Security at https://studyinthestates.dhs.gov/stem-opt-hub.

If you have any questions concerning this alert, please contact your designated Gibney representative or email info@gibney.com.