New STEM OPT Rules: More than Just an Extra Seven Months of Work Authorization

by Baker Donelson

On March 11, 2016, the U.S. Department of Homeland Security (DHS) published its final rule on enhancements to the Optional Practical Training (OPT) program for F-1 international students in science, technology, engineering and mathematics (STEM) fields. This final rule takes effect on May 10, 2016 and extends the STEM OPT validity from 17 months to 24 months. The additional seven months of employment authorization (allowing at least two more chances for H-1B cap filing success) is a welcome change for foreign students and their employers, but this extension comes with increased reporting, training and monitoring obligations for the employer and student. Employers hiring STEM OPT workers should carefully review the links below, especially the Form I-983 instructions, to make sure any employment arrangements comply with the new requirements.

STEM OPT is an additional period of temporary training/work authorization that is available to eligible F-1 students following their initial period of regular, post-completion OPT (typically for 12 months). To qualify for this extended (now 24 month) period of OPT, a student must:

  • Have a degree in an eligible STEM field from a Student and Exchange Visitor Program-certified school that is STEM-accredited when the student submits the STEM OPT extension application to United States Citizenship and Immigration Services (USCIS).
  • Pursue their STEM OPT extension through an employer that:
    • offers training in a field matching the student’s qualifying field of study;
    • pays wages similar to those of U.S. workers;
    • will not replace any U.S. workers, even part-time, with the STEM OPT trainee;
    • is enrolled in USCIS’s E-Verify employment eligibility verification program; and
    • agrees to provides the student with formal training and learning objectives and periodic assessments using Form I-983 (similar to the DS-7002 for J-1 trainees and interns), which must be provided to the school official along with any changes or termination.
  • Work a minimum of 20 hours per week per employer.

The rule takes effect on May 10, 2016, and includes transitional provisions. Students with 17-month STEM OPT applications pending with USCIS on May 10, 2016, will receive from USCIS a Request For Evidence (RFE) to allow them to upgrade the application under the new rules and receive 24 months instead of 17 months of STEM OPT. Students with approved EADs with at least 150 calendar days of expiration of an existing 17-month OPT period may request a seven-month extension by filing a new STEM OPT application following the new rules. If less than 150 days remain on the original EAD, no extension will be allowed.

In a change from the past, if the student’s STEM degree was not the most recent degree, STEM OPT may still be available, monitored by the school of most recent graduation. A student who obtains a second U.S. STEM degree can receive a second period of STEM OPT authorization.

Students, employers and school officials will need to actively monitor and cooperate in the various requirements and deadlines that STEM OPT now imposes. USCIS may conduct site visits to confirm the training is as represented, and employers can expect other workers to be aware and watching (and maybe reporting).

The rule newly allows an automatic 180-day extension of employment authorization for students who timely filed the STEM OPT application, but it eliminates a rule that technically required USCIS to issue an “interim EAD” for a first-time EAD application that USCIS does not adjudicate timely.

The longer period of STEM OPT will allow some former students another chance to be sponsored for “capped” H-1B employment under the lottery for limited slots that occurs every April.

For further details on the new STEM OPT rule and related resources, click here.

For the Form I-983 Overview and instructions, click here.

For further information on the transition plan and implementation of new rule on pending applications, click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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