On March 11, 2016, the U.S. Department of Homeland Security (DHS) published a final rule regarding extensions of optional practical training (OPT) for F-1 students in qualifying science, technology, engineering or mathematics (STEM) fields. The rule allows students in qualifying STEM fields who have elected to pursue 12 months of OPT to extend their OPT period by 24 months. The final rule will go into effect on May 10, 2016, effectively replacing the current 17-month STEM OPT extension introduced by a 2008 interim final rule (2008 IFR).
In August 2015, the U.S. District Court for the District of Columbia ordered the vacatur of the 2008 IFR in Washington Alliance of Technology Workers v. DHS, but stayed the vacatur until February 12, 2016. On October 19, 2015, DHS published a notice of proposed rulemaking (proposed rule), to which DHS received over 50,000 comments. On December 22, 2015, DHS asked the court for an extension of the stay of the vacatur through May 10, 2016, so that it could review and respond to the comments, develop guidance, and train officers in the new STEM OPT program requirements as well as develop and provide training aids and materials for foreign students, U.S. schools, and U.S. employers. On January 23, 2016, the court granted the request and stayed the vacatur until May 10, 2016—the effective date of the new rule.
The final rule sets forth new requirements for employers, schools and F-1 students pursuing the STEM OPT extension, as well as transition procedures for F-1 students who were already authorized for the 17-month STEM OPT extension as well as F-1 students who are now contemplating the STEM OPT opportunity.
Changes in the Final Rule
The final rule authorizing the 24-month STEM OPT extension implements the following changes, among other things:
- 24-month period: The STEM OPT extension period will increase from 17 months to 24 months. To qualify, the F-1 student must be in a valid initial 12-month period of post-completion OPT and the school that granted the student's qualifying STEM degree must be an accredited U.S. institution of higher education and certified with the Student and Exchange Visitor Program (SEVP).
- Prior STEM degree: An F-1 student who is in an initial 12-month period of OPT for a non-STEM degree may seek a 24-month STEM OPT extension based on a prior qualifying STEM degree from an accredited U.S. institution, provided that the training will directly relate to the prior STEM degree, and the prior STEM degree was conferred within the 10 years preceding the date of the designated school official’s (DSO’s) recommendation for the STEM OPT extension.
- Second STEM OPT extension for subsequent STEM degree: F-1 students may have the opportunity to participate in the STEM OPT extension twice throughout their academic career if they complete a subsequent STEM degree at a higher educational level. Under this provision, an F-1 student may complete a STEM degree and then participate in an initial 12-month period of OPT, followed by a 24-month STEM OPT extension. If that student then pursues a second STEM degree at a higher level, and completes another initial 12-month period of OPT, the student is eligible for a second 24-month STEM OPT extension. Students may not obtain back-to-back STEM OPT extensions, as STEM OPT extensions may only be granted as extensions of an initial 12-month OPT period.
- Training Plan: Applicants must prepare and execute with their prospective employer a formal training plan (Form I-983, “Training Plan for STEM OPT Students”), “Training Plan for STEM OPT Students”), which must be reviewed and approved by the student’s DSO before the DSO will issue a new Form I-20 for the 24-month STEM OPT extension. Employers may use existing training programs or policies to satisfy training plan requirements, so long as the plan meets certain specifications.
- Employer attestations: Employers must include attestations, as part of the Form I-983 Training Plan, indicating that (1) the employer has sufficient resources and training to provide appropriate training; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker, and (3) the opportunity will help the student achieve his or her training objectives.
- Student reporting and evaluation obligations: Every six months, the student must work with his or her DSO to confirm that the student's record in SEVIS accurately reflects their current circumstance. The student must also provide an annual progress report to the DSO, as well as a final evaluation at the end of the STEM OPT extension period.
- Site Visits: DHS may conduct employer site visits to ensure that the employer is complying with program objectives as laid out in Form I-983. DHS must notify employers 48 hours before any site visit, unless there is a complaint or other evidence of noncompliance, in which case no notice is required.
- Unemployment periods: An F-1 student may be unemployed for 60 days during the 24-month STEM OPT extension (in addition to 90 days of unemployment allowed during the initial 12-month period of post-completion OPT).
- Cap-Gap relief: The final rule retains the Cap-Gap relief for F-1 students with timely filed H-1B petitions and requests for change of status until October 1 of the new fiscal year, if the H-1B petition is pending with or approved by U.S. Citizenship and Immigration Services (USCIS).
The final rule also delineates procedures to allow for a smooth transition between the old rule, effective through May 9, 2016, and the new rule, effective on May 10, 2016.
Beginning on May 10, 2016, USCIS will adjudicate all STEM OPT applications under the standards of the new final rule. If an application for a 17-month STEM OPT extension is pending as of May 10, USCIS will send a request for evidence (RFE) to allow students to effectively amend their application and demonstrate their eligibility for the 24-month STEM OPT. The RFE request will include submission of a new Form I-20 Certificate of Eligibility endorsed on or after May 10, indicating that the DSO recommends the student for the STEM OPT extension and has approved a Form I-983 Training Plan.
If an F-1 student has an existing employment authorization document (EAD) based on a 17-month STEM OPT extension that was approved before May 10, 2016, the student may apply for an additional 7 months of OPT if: (1) the F-1 student properly files an Application for Employment Authorization (Form I-765) on or before August 8, 2016, and within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension; (2) the F-1 student’s 17-month STEM OPT EAD has at least 150 calendar days of authorization remaining at the time the student’s Form I-765 is filed; and (3) the F-1 student meets the requirements for the 24-month STEM OPT. If the student does not apply for the 7-month extension, the 17-month STEM OPT EAD will remain valid until the EAD expires, and the student, employer, and DSO must continue to follow all the terms and conditions under the 17-month STEM OPT extension program.
Finally, an F-1 student may only apply for a STEM OPT extension if the student is in valid post-completion OPT at the time of filing. Therefore, if an F-1 student in initial post-completion OPT will enter the 60-day grace period before May 10, 2016, the student must apply for the 17-month STEM OPT extension before the initial 12-month period expires, in order to remain eligible for the 24-month STEM OPT extension.