Students with existing OPT grants must have at least 150 days of this grant remaining before seeking a further extension under the new rule.

As we reported in our LawFlash of March 10 (DHS Announces Final Rule on STEM OPT Employment Authorization), the US Department of Homeland Security has published a final rule that will allow F-1 students who have obtained degrees in science, technology, engineering, and math (STEM) fields to receive an extended maximum period of 36 months of Optional Practical Training (OPT) employment authorization after graduation. Previously, the maximum OPT period for such STEM degree holders was 29 months. The final rule, which will not take effect until May 10, 2016, also creates new attestation requirements for employers of STEM OPT holders, including the creation and maintenance of a detailed “individualized training plan” on a new Form I-983.

The final rule creates two important limitations on the availability of the full 36-month STEM OPT period for certain F-1 students who currently hold STEM OPT grants.

First, students whose STEM OPT period ends before May 10, 2016, will not be able to seek an extension under the final rule, although they may continue to benefit from their current STEM OPT grants.

Second, students whose current STEM OPT grants expire after May 10, 2016, must have at least 150 days remaining on such grants to seek and receive an extension of these grants. This effectively means that any F-1 student whose current STEM OPT grant expires before October 7, 2016, will not receive a further extension under the final rule.

Because STEM OPT extensions will be sought through filing an I-765 application for an Employment Authorization Document (EAD), it is unclear how US Citizenship and Immigration Services plans to reconcile the 150-day limitation with its current requirement that EAD renewal applications be filed no earlier than 120 days before the existing EAD’s expiration. Presumably, some guidance on this conflict will be forthcoming.