On March 11, 2016, the Department of Homeland Security (www.dhs.gov) (“DHS”) published a final rule that significantly revises portions of the work authorization process for F-1 students. The new rule, which will go into effect on May 10, 2016, addresses extensions of F-1 post-completion Optional Practical Training (“OPT”) for foreign students who have completed U.S. degree programs in the fields of Science, Technology, Engineering, or Mathematics (“STEM”). The rule replaces the current STEM OPT regulations that were invalidated by a Federal court decision in August 2015 on procedural grounds. To mitigate potential harm to foreign students and their employers, the court stayed its judgment twice for a total of nine months, i.e. until May 2016, to give DHS time to promulgate new regulations in accordance with the Administrative Procedures Act. The STEM OPT regulations impose additional administrative burdens on sponsoring US employers and F-1 students, but they also are potential lifeline for foreign nationals who have graduated from U.S. universities and have been unable to secure an H-1B working visa.
The new STEM OPT Extension rule stays within the spirit of the original STEM OPT Extension rule that has been in effect, with several significant changes and in some cases improvements. The changes made by the new rule are as follows:
- The STEM OPT extension of work authorization is increased from 17 months to 24 months.
- A student who uses the 24-month STEM extended OPT and then graduates with another, higher level degree in STEM field will be entitled to a second 24-month extended OPT (after the regular 12-month OPT that comes with that degree). A student will, however, only be entitled to two separate 24-month STEM extensions for two degrees.
- F-1 students who have graduated from a non-STEM degree field, but previously received a STEM degree in the U.S. within the past 10 years can qualify for a STEM OPT extension provided that that their job is directly related to that earlier degree field.
- To obtain a STEM OPT extension, as was the case with the prior STEM rules, the employer must be registered with the E-Verify system (https://www.uscis.gov/e-verify) and must agree to notify the STEM degree school in the event that the student’s employment ends for any reason.
- Unlike the prior STEM OPT rules, the new rules now require as a condition to an F-1 student receiving a STEM OPT extension, that the employer first adopt a Training Plan and provide it to the school. The Training Plan is completed on a Form I-983 – Training Plan for STEM OPT Students. The student must submit the completed and signed Form I-983 to his or her school as a condition to being granted the STEM OPT extension.
The Form I-983 Training Plan contains attestations by the employer that (i) the employer has sufficient resources and personnel and is prepared to provide the training required in the Training Plan; (ii) the student will not replace a full- or part-time temporary or permanent U.S. worker; and (iii) the employment opportunity will assist the student in reaching the goals set forth in the Training Plan. The Training Plan must contain the following provisions:
- The Training Plan must identify goals for the STEM practical training opportunity including specific knowledge, skills or techniques that the student will learn from the program and explain how those goals will be achieved through the STEM training program with the employer.
- The Training Plan must describe the process by which the student will be evaluated and supervised during the course of the program.
- The Training Plan must explain how the training is directly related to the student’s STEM degree.
- The Training Plan must also describe (i) the duties, hours and compensation of the student and (ii) show they are commensurate with the terms and conditions of employment of similarly situated U.S. workers employed by the employer in the area of employment.
- A student seeking STEM OPT extension must file a Form I-765, Application for Employment Authorization with the appropriate filing fee and supporting documentation within 60 days of the date that the Designated School Official (DSO) recommends STEM Extension OPT on the Form I-20 Certificate of Eligibility and enters it into the SEVIS record. Note: The 60-day rule only applies to STEM Extension OPT. F-1 students seeking a 12-month period of post-completion OPT must file their I-765 within 30 days of the DSO’s recommendation and entry into the SEVIS record.
- If a foreign student changes employers during the 24-month STEM extension period, then within 10 days of commencing the new employment, the student must submit a new Form I-983 with a new Training Plan signed by the new employer to their school in order to obtain the school’s approval of continued STEM extended OPT with the new employer.
- As noted in the introduction, the new STEM OPT rules become effective on May 10, 2016. If a foreign student applied for the 17-month STEM extension prior to May 10th and that extension is pending on May 10th, then the USCIS will issue an RFE in the pending application requesting a newly issued SEVIS Form I-20 from the school covering the full 24-month period (the issuance of which by the school will require the provision of a Training Plan on Form I-983). Upon receipt of the requested documentation, USCIS will then be able to grant the full 24-month extension period.
- An F-1 student who received a 17-month STEM extension prior to May 10th may request an additional seven months of EAD validity provided that the F-1 student applies for the additional time between May 10th and August 8, 2016. The F-1 student must have at least five months of validity remaining on their 17-month STEM extended EAD at the time of their application filing. The application for the additional seven months must include a new SEVIS Form I-20 from the school (which can only be issued by providing the school with a completed Training plan on Form I-983).
- An F-1 Student whose EAD expires while an application for STEM OPT Extension is pending review by the USCIS will receive an automatic extension of employment authorization of up to 180 days beyond the date of the EAD’s expiration.
- F-1 students seeking a 24-month STEM OPT extension are allowed to have been unemployed for up to 90 days during their initial 12-month post-completion OPT and upon grant of STEM Extension OPT the unemployment limit is extended and additional 60 days for total not to exceed 150 days of unemployment during the entire (36 months) OPT period.
- F-1 students who were previously granted a 17-month STEM OPT extension and are seeking a 7- month extension of STEM OPT must not have accrued more than 120 days of unemployment in the aggregate. Upon grant of the 7-month extension F-1 students may not accrue more than 150 days of unemployment during the entire (36 months) OPT period.
- The Student and Exchange Visitor Program (SEVP) revised its guidance on May 5th – Broadcast Message Number 1605-01 (Revised Guidance for SEVIS Workarounds and STEM OPT Transition) -to provide special filing instructions for those students who become eligible on May 10, 2016 for a STEM extension based on a prior degree or for a seven-month extension of approved STEM OPT and who must file their applications before May 23, 2016. The new guidance instructs students in these categories to file a Form I-765 with USCIS no earlier than May 10, 2016 without the Form I-20 and to include one of the following statements:
- For students whose filing deadline for a seven-month STEM OPT extension falls before May 23, 2016:
“Due to new regulations, I must apply for the seven-month STEM extension of my OPT before SEVIS supports it. I am eligible based on my prior degree. I will provide a Form I-20 with the extension recommendation after USCIS requests it.”
- For students eligible for a STEM extension based on a PRIOR degree and whose current post-completion OPT ends before May 23, 2016:
“Due to new regulations, I must apply for the 24-month STEM extension of my OPT before SEVIS supports it. I am eligible based on my prior degree. I will provide a Form I-20 with the extension recommendation after USCIS requests it.”
- For students whose filing deadline for a seven-month STEM OPT extension falls before May 23, 2016:
A few additional notes about the final rule:
- The Cap-Gap provision survived and continues to apply. This provision grants automatic extension of status and work authorization under the EAD to an F-1 student whose EAD will expire any time between April 1 and October 1 (when new H-1Bs become available) if the F-1 student has been sponsored for an H-1B petition under the H-1B cap with a request to change status, and the filing occurs before the EAD’s expiration. As the H-1B cap has repeatedly been reached in the first week of April, this assumes a filing will have been made in the first week. Under the Cap-Gap provision, the automatic extension of work authorization will continue until October 1 unless any of the following occur: (i) the F-1 student is not selected in the H-1B lottery; (ii) the sponsoring employer withdraws the H-1B petition before it is approved; or (iii) the F-1 student travels abroad before the H-1B petition has been approved.
An F-1 student may travel abroad and seek readmission during the Cap-Gap period to recommence employment under the Cap-Gap provision if the H-1B petition and change of status have been approved before the F-1 student departs the U.S. However, F-1 students need to have a Form I-20 validly endorsed for reentry by the DSO within the last six months and should also have a valid multiple entry F-1 visa.
- An F-1 student is still not permitted have “dual intent” – i.e. seek permanent residence or otherwise have an intent to immigrate permanently to the U.S. without risking loss of F-1 status or readmission to the U.S.
These new STEM Extension OPT rules are complex. The USCIS has launched a very useful site – https://studyinthestates.dhs.gov – that provides guidance to employers, F-1 students and school officials to help them better understand these provisions and also tools to make navigating the intricacies of OPT and STEM OPT somewhat easier. Nonetheless, USCIS will not hesitate to reject and return applications that are incomplete, untimely filed or improperly prepared. With the H-1B cap selections now complete, Employers should carefully review all employees who are work authorized under F-1 post-completion OPT to determine what actions can and must be taken and by what given dates. Parker Gallini LLP will be happy to assist employers who have questions about the new STEM rules and how they might apply to their foreign national employees.
Donald Parker (firstname.lastname@example.org)
John Gallini (email@example.com)
Grant Godfrey (firstname.lastname@example.org)