F-1 Students Working under Optional Practical Training Given a Temporary Reprieve

F-1 students whose OPT are due to expire before May 10, 2016 – and their employers – can breathe a temporary sigh of relief thanks to a recent ruling by the Federal District staying the vacatur of the U.S. Department of Homeland Security (“DHS”) STEM Extension and Cap Gap regulations previously promulgated in April of 2008.  The vacatur of the DHS’s regulations was to take effect on February 12, 2016.

Specifically, the April 2008 regulations provided the following relief:

  • Extended the maximum period of OPT for F-1 students who had graduated from a U.S. university in designated STEM fields from 12 months to 29 months- through a 17 month STEM Extension OPT – provided the F-1 student had an offer of employment or actual employment with an E-Verify registered employer.
  • Granted “CAP Gap” work authorization to F-1 students whose OPT expired any time on or after April 1 and before October 1, if the F-1 student had an H-1B petition selected for processing by the DHS U.S. Citizenship & Immigration Services (USCIS).

In March of 2014 Washington Alliance of Technology Workers, “a collective-bargaining organization that represents science, technology, engineering, and mathematics (“STEM”) workers”, sued the DHS over these rules and in August of 2015 won a judgment invalidating the 2008 regulations on procedural grounds. However, the Judge for the District Court stayed her judgment for six months, i.e. until February 2016, to give DHS time to promulgate new rules using the proper procedures.  On October 19, 2015, the Department of Homeland Security (“DHS”) published a proposed rule relating to the STEM OPT extension in the Federal Register. The rule if promulgated as drafted will replace the current STEM OPT regulations that were enacted in 2008.  The proposed rule stays within the spirit of the 2008 rules, with a few twists. Highlights include:

  • The STEM OPT extension will be increased from 17 months to 24 months;
  • F-1 students who have graduated from a non-STEM degree field, but previously received a STEM degree in the U.S., may be able to use the STEM OPT extension if they meet certain eligibility criteria;
  • Any employer of an F-1 student seeking to continue work under STEM OPT must draft a formal mentoring and training program and submit it to the school before the F-1 student can apply for the STEM OPT extension. The program needs to include formal evaluations and those evaluations must be submitted to the school prior to the conclusion of the STEM OPT program;
  • The employer of an F-1 student seeking to continue work under STEM OPT will need to attest that:
    • (1) the duties of the position, hours, and compensation paid to the student will be in line with similarly situated U.S. workers;
    • (2) the employer has sufficient resources and personnel to carry out the training program;
    • (3) no U.S. workers will be laid-off as a result of the program, and
    • (4) the job opportunity furthers the training that the student received in the degree program.

The proposed rule states that the DHS will have authority to visit the workplace to verify that the employers attestations are true.

As has been the case under the 2008 rules, only employers who are  registered with E-Verify may employ an F-1 student under STEM OPT.

Importantly, students who are currently on a 17 month STEM OPT extension will be allowed to apply for the extra seven (7) months of employment authorization if they otherwise meet the requirements under the new program.

For F-1 students whose current 12 month OPT is set to expire before May 10, 2016, and who are graduates with degrees in a STEM designated field, it makes sense to file an application for 17 month STEM Extension OPT provided they are employed with or have a job offer from an E-Verify registered employer. Employers who are not registered with E-Verify, but currently employ a qualifying F-1 student with a degree in a STEM designated field and an OPT that will expire before May 10, 2016, should look into E-Verify. With the H-1B cap season opening quickly approaching employers should also recognize that H-1B sponsorship may be a necessity if they hope to hold on to a valued employee currently in F-1 OPT.

Please contact Donald Parker, John Gallini or Grant Godfrey if you have any questions about the current F-1 OPT rules, the potential implications of the Court’s order and temporary stay, and options that are and may be available for maintaining status and/ work authorization.

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