DHS announces final Rule for F-1 STEM OPT Extension

Maggio Kattar

Upon receiving an extension of the vacatur of the 2008 F-1 STEM OPT rule to May 10, 2016, DHS has culled through over 50,000 comments and produced the Final Rule: Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.

This Final Rule will be in effect May 10, 2016.

The most significant provisions of the final rule will:

  • Allow eligible F-1 students that have elected to pursue 12 months of OPT in the U.S. to extend the OPT period by 24 months (STEM OPT extension). This 24-month STEM OPT would replace the current 17-month STEM OPT extension. DHS will begin accepting applications for 24-month STEM OPT Extensions May 10, 2016.
  • Provide a limited window of time during which qualifying students who hold valid 17-month EADs as of May 10, 2016 may apply for an additional 7 months of Employment Authorization. This limited application window begins May 10, 2016 and ends August 8, 2016.

Qualifying students must:

  • Meet all the requirements for the 24-month STEM OPT extension under the new Final Rule as described in 8 CFR 214.2(f)(10)(ii)(C),
  • Submit of the Training Plan (Form I-983) to the DSO,
  • Have 150 calendar days remaining on their current 17-month STEM OPT Extension at the time the Application for Employment Authorization is filed, and
  • Apply within 60 days of the date the DSO enters the recommendation for 24-month STEM OPT.
  • More clearly identify which fields of study serve as the basis for STEM OPT extensions.
  • Increase the oversight of the STEM OPT extensions by requiring the implementation of formal mentoring and training plans (completion of Form I-983) by employers to augment students’ academic learning through practical experience. This is intended to equip students with a more comprehensive understanding of their selected area of study and broader functionality within that field. The Training Plan will also take further steps to ensure the validity of the training and to address wage and U.S. Worker job protection by requiring employers to attest that:
  • the F-1 student is paid a salary commensurate with similarly situated workers; and,
  • it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity and;
  • the student will not replace a full- or part-time, temporary or permanent U.S. worker; and
  • the opportunity will help the student attain his or her training objectives.
  • Grant STEM OPT extensions only to students with degrees from accredited schools.
  • Expand the eligibility of STEM OPT for certain students whose most recent degree is not in a STEM field.
  • Retain the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allow an additional 60 days (for an aggregate of 150 days) for students who obtain a 24-month STEM OPT extension. The current regulation allows an additional 30 days, for an aggregate of 120 days.
  • Continue to limit STEM OPT extensions only for students employed by companies enrolled in the U.S. Citizenship and Immigration Services’ E-Verify employment eligibility verification program.
  • Keep the “Cap-Gap” relief that was initially introduced in 2008 for any F-1 student with a timely filed, cap-subject H-1B petition and request for change of status. This Cap-Gap relief permits such students to automatically extend the duration of their OPT until September 30 of the fiscal year for which the H-1B is being requested.
  • Provide authority to DHS to conduct site visits to ensure compliance. DHS would provide 48 hours notice of such visits unless a complaint or other evidence of non-compliance predicated the visit.