The Department of Homeland Security (DHS) has issued a final rule that expands and extends the Optional Practical Training (OPT) program for foreign students with undergraduate or graduate degrees in the science, technology, engineering and mathematics (STEM) fields. Under the new rule, beginning May 10, 2016, international students earning STEM degrees from accredited U.S. universities are eligible for a 24-month extension beyond their initial 12-month OPT. This represents a 7 month increase over the previous STEM OPT rule, which allowed for a 17 month OPT extension. All international students are eligible for an initial 12 months of OPT, so those with STEM degrees may now qualify for a total of 36 months of OPT.

Eligibility

To qualify for a STEM OPT extension, the international student’s degree must be awarded by an accredited U.S. college or university and must be in a field recognized as a STEM field by DHS. As is the case with OPT generally, a student’s practical training pursuant to the STEM OPT extension must be directly related to his or her major area of study.

Further, while OPT generally relates to a degree that has just been completed, the new rule allows participating students to rely on a previously-earned qualifying degree to apply for a STEM OPT extension, as long as the prior degree did not already form the basis of a STEM OPT extension and was granted by a school that meets DHS’s accreditation requirements. The first STEM degree must be directly related to the practical training position and must have been earned in the 10 years prior to the application for the OPT extension. Thus, for example, a graduate of a U.S. MBA program may be eligible for a 36 month OPT period, based upon an undergraduate U.S. Engineering degree.

Additional Obligations For Employers

The rule includes additional obligations for employers of foreign students and new training program requirements. Specifically, before an application for a STEM OPT extension can be filed, the student and prospective employer must prepare and execute a formal training program that includes concrete learning objectives with proper oversight. The training plan must be submitted to the Designated Student Officer (DSO) at the school on the new Form I-983. The form requires the employer to attest that it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; the student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; the terms and conditions of the STEM OPT employment, including compensation are commensurate with those provided to similarly situated U.S. workers; and the opportunity helps the student attain his or her training objectives.

Further, the employer must be enrolled in and remain in good standing with E-Verify.

Critically, the rule also provides that DHS may, at its discretion, conduct site visits to ensure that employers and students meet program requirements, including that they are complying with the above attestations and that they possess the ability and resources to provide structured and guided work-based learning experiences in accordance with individualized Training Plans. DHS will provide notice to the employer 48 hours in advance of any site visit, except when the visit is triggered by a complaint or other evidence of program noncompliance.

Lastly, the rule includes several additional reporting requirements, including, among others, a six-month validation requirement for students and DSOs; an annual self-evaluation requirement, to be signed by the employer; and a requirement to report any changes to training program to the DSO.

Important Transitional Considerations

Beginning May 10, 2016, USCIS will adjudicate all STEM OPT applications under the standards of the new final rule. USCIS will send a request for evidence (RFE) to any applicant who already filed for a 17-month STEM OPT extension and whose application is still pending as of May 10, 2016. The RFE will request documentation to show that the student is eligible for the 24-month extension.

Students who obtained a 17-month STEM OPT extension before May 10, 2016, may either retain their current status and remain subject to the previous STEM OPT rules, or, in certain cases, may apply for a 7-month extension between May 10, 2016 and August 8, 2016, evidencing their eligibility for the extension.

Students currently authorized for a period of 12-month standard post-completion OPT that expires before May 10, 2016, must be sure to file for a STEM OPT extension before their current OPT expires. They will receive an RFE as detailed above, but under both the old and new rules, a student must be in a valid period of standard 12-month OPT at the time a STEM OPT extension is filed with USCIS.

H-1B Cap Considerations

The new rule retains the H-1B “cap gap” provision, which allows for automatic extension of status and employment authorization for any F-1 student with a timely filed H-1B petition and request for change of status, as long as the petition is selected for the cap and the student’s petition has an employment start date of October 1 of the following fiscal year.

New DHS Resources

To provide guidance for STEM OPT program participants, DHS has set up a STEM OPT “Study in the States” Hub. The Hub will include resources for students, DSOs and employers.

USCIS will begin to accept applications for a STEM extension of work authorization under the new rule on May 10, 2016.