Ready or not, the new STEM OPT rule is in play!

by Franczek Radelet P.C.
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[co-athor: Karlie Dunksky]

As higher education institutions with international students should already be aware, the Department of Homeland Security (“DHS”) recently published a new regulation that provides eligible F-1 graduates from STEM programs in the United States with an additional 24 months of work authorization through the Optional Practical Training (OPT) program. The rule became effective on May 10, 2016, replacing the prior rule providing for only a 17-month OPT extension.  Concurrently, DHS has enacted a set of transition procedures for students with:

1) An approved 17-month extension request, who may seek an additional 7 months of work authorization;

2) A pending 17-month extension request as of May 10, 2016;

The benefits offered by these transitional procedures are very time-sensitive, and it is critical that both international student services offices and international students themselves pay close attention to their requirements in order to maintain and extend their status and work authorization through the OPT program. Below is a brief FAQ outlining the most important and time-sensitive aspects of this rule.

1. Should a University that does not offer STEM degrees be concerned about the new rule?

Generally, the answer is no. However, the new rule allows a student with a pre-existing STEM degree from a U.S. institution to request the STEM OPT extension, even if his/her most recent degree is not in a STEM field, under certain circumstances. First, the student must not have previously requested a STEM OPT extension based on the prior STEM degree. Second, the student’s OPT employment must advance the student’s training in the prior STEM field.

In this situation, the international student services office at the most recent higher education institution is responsible for verifying compliance with the requirements of the new rule and issuing an I-20 recommending STEM OPT.

2. What happens to a 17-month STEM OPT that a student may have received prior to May 10, 2016?

The rule permits students with 17-month STEM extension to continue using their EADs until expiration, termination, or revocation.

3. Can these students apply for an extension and get the full 24-month period?

Yes. The rule creates a transitional period that began on May 10, 2016, and ends on August 8, 2016, wherein students with the 17-month EADs will be able to apply for an additional 7-month extension, to bring them to the new 24-month maxout..  Students must meet several requirements to qualify, including:

  • The I-765 request to renew the EAD must be filedat least 150 calendar days before the student’s 17-month OPT period ends; AND
  • The student must meet all requirements for the 24-month STEM rule.

4. What procedures must be followed to apply for the extension?

The student must apply for the extension during the transition period  (before 8/8/16) and must have a recommendation in SEVIS from their most recent alma mater’s designated school official (DSO). The student must  submit an I-20 from the DSO within 60 days of the date that the DSO enters a recommendation for a 24-month STEM OPT extension into the student’s SEVIS record.

5. What happens to STEM extension requests that were filed prior to May 10, 2016?

The 17-month rule remained effective through May 9, 2016. An application filed before May 10, 2016, will be adjudicated under the rules in effect on the date of adjudication. If the application is adjudicated on or after May 10, 2016, it will be adjudicated under the 24-month rule.

USCIS will issue a request for evidence (RFE) to collect evidence to determine whether a STEM extension request filed under the 17-month rule is eligible under the 24-month rule. USCIS will also ask the student to provide a new I-20 endorsed with the 24-month STEM extension recommendation.  

6. Can students with pending STEM extension requests withdraw earlier-filed STEM requests and file new ones meeting the 24-month guidelines?

This is strongly discouraged. Students must be in a valid period of post-completion OPT to request the extension. USCIS has warned in a FAQ that it will deny requests from students who withdraw a pending request and then re-file a new request after post-completion OPT period has expired.

Under the OPT rules, students with a pending STEM OPT extension request whose post-completion OPT card expires will receive an auto-extension of this card for 180 days while the card remains pending. This remains true of both the 17- and 24-month extensions.

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.

© Franczek Radelet P.C. | Attorney Advertising

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