A proposed Department of Homeland Security rule would allow certain foreign students in F-1 status with science, technology, engineering, or mathematics (STEM) degrees to apply for a 24-month extension of their optional practical training (OPT) work authorization beyond the 12-month post-graduation OPT period ordinarily available to all F-1 students.

The proposed rule addresses widespread concerns surrounding the potential termination of the current 17-month STEM OPT extension, in which tens of thousands of students participate. As noted in our prior alert, that program will be vacated for procedural deficiencies on February 12, 2016. (See our alert from October 7, 2015.) The proposed 24-month extension program will effectively replace the 17-month extension and also incorporates new training requirements and other protective measures.

DHS is accepting comments until November 18, 2015.

The most significant aspects of the proposed rule include the following:

24-Month STEM OPT Extension

Under the proposed rule, F-1 students with STEM degrees and 12 months of post-graduation OPT will be eligible to apply for a 24-month extension (for a total of 36 months of post-graduation OPT), provided their degree is from an accredited U.S. institution and their employers are enrolled in U.S. Citizenship and Immigration Services’ E-Verify employment eligibility verification program. Importantly, the 36-month OPT period gives F-1 students multiple opportunities to secure H-1B work authorization, which has become increasingly difficult in the lottery system involving all H-1B petitions filed by employers who are not exempt from the annual H-1B quota, due to high demand for this visa category.

Additionally, the proposed rule allows STEM students who subsequently obtain another U.S.-awarded STEM degree at a higher educational level to apply for another 24-month OPT extension. Students who have previously obtained a U.S.-awarded STEM degree are also eligible for the 24-month extension following a current 12-month OPT period based on a U.S.-awarded non-STEM degree.

If the proposed rule becomes final, DHS will allow a subset of F-1 students currently participating in the 17-month extension to extend that period by up to 7 months (for a total of 24 months), so long as they apply no later than 120 days before their current OPT program expires and meet all of the requirements of the 24-month STEM OPT extension program.

Formal Mentoring and Training Plans and Protections for U.S. Workers

The proposed rule also contains some requirements that were not previously included in the 17-month STEM OPT extension option.

Namely, the proposed rule requires that students who want to obtain the 24-month STEM-based OPT extension of their work authorization need to work with the employer to design and implement a formalized mentoring and training plan. The student is then required to submit the plan to his or her designated School official, or DSO, before the DSO can recommend the STEM OPT extension by endorsing the student’s Form I-20. Moreover, students are required to track their progress towards the objectives of the mentoring and training plan by submitting evaluations to the DSO every six months and at the completion of the program.

To address concerns that the 24-month OPT extension will adversely impact U.S. workers, the employer must attest in the mentoring and training plan that, among other guarantees, the employer will not terminate, lay off, or furlough any U.S. worker as a result of providing the OPT program. The employer must also affirm that the terms and conditions of the OPT program — such as duties, hours (set at a minimum of 20 hours per week), and compensation — are commensurate with those for similarly-situated U.S. workers. DHS further stipulates that Immigration and Customs Enforcement may conduct discretionary “on-site reviews” to ensure that employers are meeting program requirements.

Cap-Gap Relief

Finally, like the 2008 rule, the proposed rule reinstates automatic Cap-Gap relief, an administrative measure which temporarily extends an F-1 student’s status and OPT authorization so the student may remain in the United States until their H-1B status commences (ordinarily on October 1), provided that the student’s nonexempt H-1B employer has obtained an approved H-1B petition on the student’s behalf. The new rule does not, however, address issues involving the high demand for H-1B visas that leads to the random drawing/lottery quandary.

Special thanks to Mary Van Houten, Cathleen Velke, and Aliya Inam on their contribution to this update.