New rule for F-1 OPT STEM extension has been released

The much anticipated new rule for F-1 OPT STEM extension has been released for public inspection today. It will be published in Federal Register March 11th with an effective date in May. Here is a quick overview:

The 17-month STEM OPT regulations remain in force through May 9, 2016. This rule is effective beginning on May 10, 2016.

STEM OPT Applications for Employment Authorization Pending on May 10, 2016: DHS will continue to accept and adjudicate applications for 17-month STEM OPT extensions under the 2008 IFR through May 9, 2016.

Beginning on May 10, 2016, USCIS will issue RFEs to students whose applications are still pending on that date. See 8 CFR 214.16(a). The RFEs will allow these students to effectively amend their application to demonstrate eligibility for 24-month extensions without incurring an additional fee or having to refile the Application for Employment Authorization. Specifically, USCIS will issue RFEs requesting documentation that will establish that the student is eligible for a 24-month STEM OPT extension, including a Form I-20 Certificate of Eligibility endorsed on or after May 10, 2016, indicating that the DSO recommends the student for a 24-month STEM OPT extension.

 A student may file for a STEM OPT extension only if the student is in a valid period of post-completion OPT at the time of filing.

Any 17-month STEM OPT EAD that is issued before May 10, 2016 will remain valid until the EAD expires or is terminated or revoked. See 8 CFR 214.16(c)(1).125 As a transitional measure, starting on May 10, 2016, certain students with such EADs will have a limited window in which to apply for an additional 7 months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT. See 8 CFR 214.16(c)(2). To qualify for the 7-month extension, the student must satisfy the following requirements:  The STEM OPT student must properly file an Application for Employment Authorization with USCIS, along with applicable fees and supporting documentation, on or before August 8, 2016, and within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record. See 8 CFR 214.16(c)(2)(i). DHS believes that the 90-day window for filing such applications provides sufficient time for students to submit a required Training Plan, obtain the necessary Form I-20 Certificate of Eligibility and recommendation from the student’s DSO, and fulfill other requirements for the 24-month extension. 

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 Application for Employment Authorization is filed. See 8 CFR 214.16(c)(2)(ii). This 150-day period guarantees that a student who obtains an additional 7-month extension will have at least 1 year of practical training under the enhancements introduced in this rule, including site visits, reporting requirements, and statement and evaluation of goals and objectives. For students who choose to seek an additional 7-month extension, the new enhancements apply upon the proper filing of the Application for Employment Authorization requesting the 7-month extension. See 8 CFR 214.16(c)(3). 

The student must meet all the requirements for the 24-month STEM OPT extension as described in 8 CFR 214.2(f)(10)(ii)(C), including but not limited to submission of the Training Plan to the DSO. See 8 CFR 214.16(c)(2)(iii). STEM OPT students applying for this additional 7-month extension must be in a valid period of OPT, but are not required to be in a valid period of 12-month post-completion OPT authorized under 8 CFR 274a.12(c)(3)(i)(B) as would normally be required for a STEM OPT extension request.

DHS will begin accepting applications for STEM OPT extensions under this rule on May 10, 2016. Beginning on that date, DHS will process all Applications for Employment Authorization seeking 24-month STEM OPT extensions in accordance with the requirements of this rule. In other words, the final rule’s new requirements will apply to all STEM OPT students whose applications are pending or approved on or after the final rule is effective.

Unless and until a student with a 17-month STEM OPT extension properly files the application for the 7-month extension under the transition procedures of 8 CFR 214.16, the student, and the student’s employer and DSO, must continue to follow all the terms and conditions that were in effect when the 17-month STEM OPT employment authorization was granted. See 8 CFR 214.16(c)(1). Upon the proper filing of the application for the additional 7- month STEM OPT period, the student, and the student’s employer and DSO, will be subject to all requirements of the 24-month STEM OPT extension period. However, under the rule, the 150-day unemployment limit described in 8 CFR 214.2(f)(10)(ii)(E) will apply to a student seeking a 7-month extension only upon approval of that extension.

 Lengthened STEM OPT Extension Period. The rule increases the OPT extension period for STEM OPT students from the 2008 IFR’s 17 months to 24 months. The final rule also makes F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level eligible for one additional 24-month STEM OPT extension.  STEM Definition and CIP Categories for STEM OPT Extension. The rule defines which fields of study (more specifically, which Department of Education Classification of Instructional Program (CIP) categories) may serve as the basis for a STEM OPT extension. The rule also sets forth a process for public notification in the Federal Register when DHS updates the list of eligible STEM fields on the Student and Exchange Visitor Program’s (SEVP’s) website. 

Training Plan for STEM OPT Students. To improve the educational benefit of the STEM OPT extension, the rule requires employers to implement formal training programs to augment students’ academic learning through practical experience. This requirement is 9 intended to equip students with a more comprehensive understanding of their selected area of study and broader functionality within that field. 

Previously Obtained STEM Degrees. The rule permits an F-1 student participating in a 12-month period of post-completion OPT based on a non-STEM degree to use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, as long as both degrees were received from currently accredited educational institutions. The practical training opportunity must be directly related to the previously obtained STEM degree. 

Safeguards for U.S. Workers in Related Fields. To guard against adverse impacts on U.S. workers, the rule requires terms and conditions of a STEM practical training opportunity (including duties, hours, and compensation) to be commensurate with those applicable to similarly situated U.S. workers. As part of completing the Form I-983, Training Plan for STEM OPT Students, an 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 will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives. 

School Accreditation, Employer Site Visits, and Employer Reporting. To improve the integrity of the STEM OPT extension, the rule: (1) generally limits eligibility for such extensions to students with degrees from schools accredited by an accrediting agency recognized by the Department of Education; (2) clarifies DHS discretion to conduct employer site visits at worksites to verify whether employers are meeting program requirements, including that they possess and maintain the ability and resources to 10 provide structured and guided work-based learning experiences; and (3) institutes new employer reporting requirements. 

Compliance Requirements and Unemployment Limitation. In addition to reinstating the 2008 IFR’s reporting and compliance requirements, the rule revises the number of days an F-1 student may remain unemployed during the practical training period. The program in effect before this final rule allowed a student to be unemployed up to 90 days during his or her initial period of post-completion OPT, and up to an additional 30 days (for a total of 120 days) for a student who received a 17-month STEM OPT extension. This rule retains the 90-day maximum period of unemployment during the initial period of post-completion OPT but allows an additional 60 days (for a total of 150 days) for a student who obtains a 24-month STEM OPT extension. The rule retains other provisions of the 2008 IFR, as follows: 

E-Verify and Reporting Requirements for STEM OPT Employers. The rule requires STEM OPT employers to be enrolled in and remain in good standing with E-Verify, as determined by USCIS, and to report changes in the STEM OPT student’s employment to the DSO within five business days.  Reporting Requirements for STEM OPT Students. The rule requires STEM OPT students to report to their DSOs any name or address changes, as well as any changes to their employers’ names or addresses. Students also must verify the accuracy of this reporting information periodically. 

Cap-Gap Extension for F-1 Students with Timely Filed H-1B Petitions and Requests for Change of Status. With a minor revision to improve readability, the rule includes the 2008 IFR’s Cap-Gap extension provision, under which DHS temporarily extends an F-1 11 student’s duration of status and any current employment authorization if the student is the beneficiary of a timely filed H-1B petition and change-of-status request pending with or approved by USCIS. The Cap-Gap extension extends the OPT period until the beginning of the new fiscal year (i.e., October 1 of the fiscal year for which the H-1B status is being requested). 3. Summary of Changes from the Notice of Proposed Rulemaking Following careful consideration of public comments received, DHS also has made several modifications to the regulatory text proposed in the NPRM. Those changes include the following: 

Time of Accreditation. For a STEM OPT extension based on a previously obtained STEM degree, the student must have obtained that degree from an educational institution that is accredited at the time of the student’s application for the extension. 

SEVP Certification Required for Prior Degrees. For a STEM OPT extension based on a previously obtained STEM degree, the degree also must have been issued by an educational institution that is SEVP-certified at the time of application for the extension. Overseas campuses of U.S. educational institutions are not eligible for SEVP certification. 

Site Visit Notifications. DHS will provide notice to the employer 48 hours before any site visit unless a complaint or other evidence of noncompliance with the STEM OPT extension regulations triggers the visit, in which case DHS may conduct the visit without notice. 12 

Focus on Training. DHS has modified the proposed rule’s Mentoring and Training Plan to increase the focus on training. The information collection instrument for this plan is now titled Form I-983, Training Plan for STEM OPT Students. 

Existing Employer Training Programs. This rule streamlines and clarifies the regulatory text and Training Plan for STEM OPT Students to clarify that employers may use existing training programs to satisfy certain regulatory requirements for evaluating the progress of STEM OPT students. 

Employer Attestation. The rule revises the employer attestation to require that the employer attest that the student will not replace a full- or part-time, temporary or permanent U.S. worker. 

Evaluation of Student Progress. The rule revises the evaluation requirement to require that the student and an appropriate individual in the employer’s organization sign the evaluation on an annual basis, with a mid-point evaluation during the first 12-month interval and a final evaluation completed prior to the conclusion of the STEM OPT extension.