New STEM OPT Extension Rule and Transition Process for F-1 Students on May 10th

The new OPT STEM rule is set to take effect on May 10th in order to replace the 2008 rule that was invalidated by a court last year.  Most are familiar with the changes to the rule, but I thought I would give a quick overview of things to be aware of:

 

  1. The automatic cap gap extension for those who have filed an H-1B change of status remains the same. Just be aware that the extension ends on September 30th, even if your H-1B change of status is still pending! Many are not aware of this and continue to work without authorization after September 30th. If your H-1B is still pending in September and you are on the automatic cap gap OPT extension, you may want to consider upgrading to premium processing so that you will not have a gap in employment authorization.
  2. OPT STEM extensions are now being processed only at the new Potomac Service Center. Approximately 50 adjudicators are at this location and trained to handle I-765 applications.
  3. Through May 9th, STEM extensions will be processed according to the old rule. If your regular OPT is expiring in the next 120 days, you may want to consider filing the extension now, rather than waiting until May 10th. It most likely would not be approved by May 9th, but you may be able to avoid the rush of those filing on May 10th.
  4. All I-765s filed on or after May 10th will be processed according to the new rules.
  5. Once you receive the STEM extension recommendation from your DSO, your I-765 must be filed within 60 days.
  6. Those applications pending on May 9th will receive an RFE asking for documentation that the new requirements will be satisfied for the 24 month extension. You cannot opt out of the new rules and ask for only 17 months.
  7. Starting May 10th, the STEM extension can only be filed 90 days in advance of your OPT expiration (previously it was 120 days). This is an important point because USCIS is considering eliminating the rule that requires USCIS to act on the I-765 within 90 days. We could see increased processing times.
  8. The SEVIS system will be updated to allow I-20s to be issued for the 24-month STEM extension, BUT the update will not be deployed until May 13th, even though the filing window opens on May 10th!
  9. This is important for those of you with STEM OPTs expiring in October and wanting to file for the 7-month extension. You may have to file your 7-month extension without a new I-20. If you file without the I-20, you need to include an explanation of why it could not be included. USCIS will later issue an RFE asking for it. Do NOT send in your I-20 before you get this RFE.
  10. The 7-month extension can only be filed between May 10th and August 8th and you must have 150 days remaining on the date your I-765 is received by USCIS. This means that you would not be eligible for the 7 months if your OPT is expiring prior to October 6th.
  11. Also, keep in mind the 150 day rule if you will be filing closer to August 8th. If your STEM OPT is expiring before January 5th, you should not wait until August 8th to file for your extra 7 months.
  12. The training plan form I-983 is still in draft form and we don’t know if the final version will be available before May 10th . If your OPT is expiring around October 6th to 30th, you may want to start working on your training plan now using the draft form at:https://www.ice.gov/sites/default/files/documents/Document/2016/I-983.pdf. We do not yet know whether DSOs will accept the training plan on the draft form if the finalized form becomes available before May 10th. So, be aware that if you use the draft form, you may be asked to complete it again with the final form.