DHS Publishes Final New STEM OPT Rule

On Friday, March 11, 2016, the U.S. Department of Homeland Security (DHS) published the long-awaited final rule relating to Optical Practical Training (OPT) extensions for foreign students with science, technology, engineering, and mathematics (STEM) degrees. The rule will become effective on Tuesday, May 10, 2016. The current STEM OPT rule remains in effect through May 9, 2016.

The new rule amends the regulations governing extensions of OPT for foreign students with STEM degrees, including but not limited to the following major changes:

  • Increases the STEM OPT extension period from 17 to 24 months;
  • Adds employer obligations, such as the completion of a new Form I-983, “Training Plan for STEM Students”; the attestation that the employer will not replace a full- or part-time, temporary, or permanent U.S. worker; the provision of commensurate terms and conditions of employment to the student and similarly situated U.S. workers; and other employer-specific requirements;
  • Subjects employers of STEM OPT students to unannounced employer site visits; and
  • Allows an additional 60-day grace period for students completing their STEM OPT period.

The new rule does not modify some aspects of the previous rule, including the requirement for STEM OPT employers to be enrolled in E-Verify and the existence of “cap-gap” related protections for students with approved cap-subject H-1B petitions.

All STEM OPT extension applications filed on or after May 10, 2016 must follow the procedure and requirements specified in the new rule. DHS provides for unique transitional rules relating to applications that have been filed or approved prior to the effective date of the new rule. For example:

(1) Applications for 17-month STEM OPT extensions approved prior to May 10, 2016:

Individuals with approved 17-month STEM OPT extensions may apply for seven-month extensions. Whether or not the 17-month STEM OPT is extended for 7 months, it will count as “one” period of STEM OPT, after which the student will have only one more lifetime period of STEM OPT eligibility under the new rule, after completing a higher degree.

(2) STEM OPT extension applications for individuals whose 12-month OPT period expires prior to May 10, 2016:

A student currently authorized for a period of 12-month standard post-completion OPT whose 12-month OPT will expire prior to May 10, 2016 must be sure to take proper action to preserve his or her eligibility for STEM OPT by applying for a 17-month STEM OPT extension before his or her 12-month standard post-completion OPT expires, since an application for STEM OPT under either rule requires the student to be in a valid period of standard 12-month OPT at the time the application for STEM OPT is filed with USCIS. Even though the student will likely receive an RFE as described above (i.e., if the application is not adjudicated by May 10), failing to file for a STEM OPT extension before the expiration of standard 12-month OPT will render the student ineligible for a STEM OPT extension.

(3) Applications for 17-month STEM OPT extensions that have not yet been approved on or after May 10, 2016:

On or after May 10, 2016, DHS will issue Requests for Evidence (RFEs) to students whose applications for a 17-month STEM OPT extension under the previous rule are still pending. The RFEs will request documentation that will establish that the student is eligible for a 24-month OPT extension under the new rule.

Individuals who believe that they may be affected by the new STEM OPT rule are strongly encouraged to consult with experienced immigration counsel in order to fully understand the application of the new rule to their particular circumstances.

For background relating to the new STEM OPT rule, please click here.

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