Finally, DHS publishes the new 24-month STEM OPT rule to be implemented on May 10, 2016

On March 11, 2016, the U.S. Department of Homeland Security (DHS) published its new rule extending optional practical training (OPT) for college graduates with certain science, technology, engineering, and mathematics (STEM) degrees. The new rule extends the initial 12 months of OPT given to all F-1 students, to an additional 24-month period of OPT for temporary training that directly relates to an F-1 student’s program of study in an approved STEM field. We previously blogged on the background behind this STEMP OPT extension.

What is OPT?

Optional practical training (OPT) grants eligible students work authorization for a period of temporary training that directly relates to an F-1 student’s program of study. All F-1 students who graduate from U.S. universities with a Bachelor’s degree (or higher degree) are eligible for an initial 12 months of OPT. Additionally, under the previous rule, STEM graduates were entitled to an additional 17 months of OPT beyond the initial 12 months. With this change, students will now be able to receive up to 24 additional months of OPT for each STEM degree. Just as before, the employer must be enrolled in E-Verify in order to hire an F-1 student pursuant to a STEM OPT extension.

When does the new rule take effect?

The 24-month STEM OPT extension regulations are effective beginning on May 10, 2016. The final rule effectively replaces the 17-month STEM OPT extension previously available. However, the 17-month STEM OPT regulations remain in effect through May 9, 2016.

What is involved in the new 24-month rule?

• OPT STEM extension: DHS extended the period of time from 17 months to 24 months and strengthened oversight of the program by adding new features.
• Form I-983 Training Plan: The new rule imposes a new requirement for potential employers of F-1 students seeking the new 24 month STEM extension. The employer must now complete and sign Form I-983, Training Plan for STEM OPT Students. This form clearly articulates the STEM OPT student’s learning objectives and affirms the employer’s commitment to helping the student achieve those objectives. The form also requires that the employer attest to not displacing full or part-time temporary or permanent U.S. workers with the F-1 student’s employment, and to paying the employee a wage that is same as other similarly situated US workers.
• Site visits: DHS now reserves the right to conduct employer site visits to ensure that the STEM OPT student and employer are following the conditions laid out in the Form I-983.
• School requirements: Students must receive their qualifying STEM degree from a school that is both accredited and Student and Exchange Visitor Program-certified.
• Permissible unemployment: DHS extended the maximum allowable days of unemployment for students on the STEM OPT extension to a total 150 days.
• Reporting requirements: Students participating in the STEM OPT extension must still regularly report to their designated school official (DSO) every six months and must now complete two self-evaluations throughout the duration of the extension.

What happens if I have an application pending for OPT right now (before May 10, 2016)?

• For applications that are adjudicated or decided prior to May 10, 2016: if a student submits an application for OPT on Form I-765, Application for Employment Authorization Document (EAD), requesting a 24-month STEM OPT extension, it will be treated as a 17-month extension request and will be adjudicated in accordance with the 17-month STEM OPT regulations.
• For applications that are still pending on May 10, 2016: USCIS will issue requests for evidence (RFEs) to students. These RFEs will enable DHS to determine whether the student is eligible for a 24-month STEM OPT extension, without students having to incur an additional fee or having to refile their EAD applications. Such students will need to submit a new Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, that was endorsed by the student’s DSO on or after May 10, 2016. The newly signed I-20 will certify that the DSO believes the student is eligible for the 24-month STEM OPT and indicates that the student has returned a completed and signed Form I-983, Training Plan for STEM OPT Students, to the DSO.

What if I already have a 17-month STEM OPT EAD?

As a transitional measure, from May 10 through August 8, 2016, certain students with 17-month EADs will have a limited window in which to apply for an additional seven months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT. Note that 17-month EADs will not automatically be converted to 24-month EADs. Applicants will have to meet these requirements:

• 150 Calendar Days Remaining on EAD. Students must be in valid OPT status at the time of filing (on May 10, 2016 to August 8, 2016). The 150 days guarantees that a student who obtains an additional seven-month extension will have at least one year of practical training under the enhancements introduced in the 24-month STEM extension, including training plan goals and learning objectives, evaluation of the training and goals, lengthened unemployment period, safeguards for U.S. workers (including commensurate compensation for the F-1 student), reporting requirements, and site visits.

• Timely Filing of Application for Seven-Month Extension. Form I-765 and relevant documents must be filed with USCIS between May 10, 2016 and August 8, 2016.

• Fulfill 24-Month STEM OPT Extension Requirements. These requirements include submission of Form I-983, Training Plan. For a detailed discussion of all the requirements, see here.

Note that if you currently have a 17-month EAD, the new 24-month rule and transition plan will not affect you, unless you choose to apply for a seven-month extension.

What are the new limits on unemployment?

The 150-day unemployment limit applies to two groups: 1) students who are granted the 24-month STEM OPT extension, and 2) students whose seven-month extension is approved under the transitional plan. These students are allowed an additional 60 days of unemployment, for a total of 150 days of allowable unemployment (90 days during the initial period of post-completion OPT plus an additional 60 days during the extension period). But note that this 150-day unemployment limit will apply to a student seeking a seven-month extension only upon approval of the request for an extension, and not while the request for an extension is pending.

What do I do if my OPT expires and I am not eligible for the additional 7 months of OPT?

Following expiration of OPT, students have a 60-day grace period for departure from the U.S. However, other options might be available to you to lawfully stay and work in the U.S. Please contact the attorneys at Minsky, McCormick and Hallagan, P.C. to see what other options you might have available to you.