F-1 STEM OPT Extension FAQs for Students and their Employers

• When will DHS start accepting 24-month STEM OPT Extension applications?

DHS will begin accepting applications for 24-month STEM OPT Extensions May 10, 2016.

• Can I submit an application for a STEM OPT Extension now?

DHS will continue to accept applications for 17-month STEM OPT Extensions through May 9, 2016.

• I have a pending 17-month STEM OPT Extension application. Should I withdraw it and wait to re-file for a 24-month extension?

You could, however it is important to remember that you may only file your application for STEM OPT extension BEFORE your initial 12-month post completion OPT period expires. If this period expires before you can file for the 24-month extension on May 10, 2016, it would be preferable to keep your pending application.

• Can students, and their employers, avoid having to complete a Training Plan (Form I-983), by applying for just a 17-month STEM OPT Extension now?

It is important to remember that the Rule which permitted the 17-month STEM Extension is still being vacated per the Court’s ruling effective May 10, 2016, therefore any STEM OPT Extensions approved on or after May 10 2016 must comply with the new Rule which goes into effect on that date and does require that students and their employer complete the Training Plan and that the employer make required attestations. Practically speaking, USCIS is quoting a 90-day processing time for STEM OPT Extension Applications, therefore any new applications for STEM OPT extension applications would likely not be approved until after the new Rule goes into effect and therefore subject to the requirements of the new Rule.

• If my 17-month STEM OPT Extension application is currently pending, how much time will I receive on my EAD when it is approved?

For all applications filed and approved prior to May 10, 2016, DHS will issue a 17-month EAD. Qualifying students can apply for an additional 7 months per the answers in items 5 and 6 below. For students with applications that are still pending as of May 10, 2016, they will be issued an Request For Evidence (RFE) so that the student may amend their application for the 24-month extension without incurring additional fees or having to refile the Form I-765, Application for Employment Authorization.

• I already have a valid 17-month EAD from my STEM OPT Extension. Will this automatically be extended to 24 months?

No. Your current EAD will remain valid until it expires, or is terminated or revoked. Normally applications for extensions of OPT are only permitted before the end of a students’ initial 12 month post-completion OPT, however as a temporary measure, DHS is providing a limited window during which time, qualifying students with valid EADs as of May 10, 2016 , may apply for an additional 7 months of Employment Authorization under the STEM OPT Extension. This limited window begins May 10, 2016 and ends August 8, 2016.

• Which students with valid 17-month EADs are “Qualifying Students” who may apply for an additional 7-month extension?

Qualifying students must met the following requirements:

1. The student 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), and
2. must submit of the Training Plan (Form I-983), completed by student and the employer, to the DSO, and
3. must have 150 calendar days remaining on their current 17-month STEM OPT Extension at the time the Application for Employment Authorization is filed, and
4. Must apply within 60 days of the date the DSO enters the recommendation for 24-month STEM OPT.

• I plan to file for the 7-month extension, is there anything I should be doing now?

DHS recommends that students requesting the 7-month extension obtain the necessary DSO recommendation and file their application at the earliest opportunity after the new rule goes into effect May 10, 2016. It is not advisable to wait until the last minute, August 8, 2016.

• What are the new requirements for employers of F-1 Students on STEM OPT Extensions?

The Final Rule maintains the requirements for employers to participate in E-Verify, and adds a requirement to complete the Training Plan Form I-983 to be submitted to the DSO. The Form I-983 also includes new attestations from the employer 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
• he opportunity will help the student attain his or her training objectives.

The employer will also complete annual evaluations of the student with a mid-point evaluation during the first 12 months as well as a final evaluation prior to the conclusion of the STEM OPT Extension. The employer must also attest that the F-1 Student will not replace a full or part-time, temporary or permanent U.S. Worker.
Finally, the new Final Rule grants DHS the authority to conduct site visits to ensure compliance with program requirements.

• Will employers be notified in advance of a DHS site visit?

Generally DHS will provide 48 hours advance notice of a site visit to an employer, unless the visit was predicated by a complaint or other evidence of non-compliance.

• How can an employer identify a worker who provides an EAD as evidence of work authorization and identity for the Form I-9 as an F-1 Student?

The EAD of an F-1 Student on an OPT Extension includes a note under “Terms and Conditions” on the face of the card that previously said “STU 17-Mnth Stem Ext”. DHS has updated this for new cards being issued to “STU-STEM OPT ONLY” in the hopes of making it more obvious that this individual may ONLY work for a specific employer in a specific role approved by their employer.