On October 19, 2015, the Department of Homeland Security (DHS) published in the Federal Register a proposed rule to provide a longer period of Optional Practical Training (OPT) employment authorization to certain qualifying F-1 students. The proposed rule change will allow F-1 nonimmigrant student visa holders with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education to extend their initial 12 month optional practical training (OPT) by a period by 24 months. This 24-month extension rule replaces the 2008, 17-month extension rule that was implemented without the required notice and comment period. This new rule is responsive to a federal court order that vacated the 2008, 17-month extension rule beginning February 12, 2016. Accordingly, students working pursuant to an OPT STEM extension likely should be able to maintain their STEM extension work authorization without the interruption that otherwise would have occurred on February 12, 2016.

Similar to the current 17-month STEM OPT extension, the proposed rule allows STEM OPT extensions only for students employed by employers enrolled in the U.S. Citizenship and Immigration Services (USCIS) E-Verify employment eligibility verification program.

The proposal also includes the “Cap-Gap” relief that allows F-1 students with a timely filed H-1B petition and request for change of status the benefit of automatic extension of F-1 status and OPT employment authorization through September 30, which would ensure continuous employment authorization for those selected under the H-1B quota and ultimately approved for H-1B status.

After the 30-day comment period ends on November 18, 2015, the DHS is required to review and consider all comments prior to implementing the final regulation.