What You Need to Know:
- The new proposed regulation on F-1 STEM extension of OPT would lengthen the total STEM OPT period from 17 months to 24 months.
- This new proposed regulation would continue to require STEM OPT employers to be enrolled in E-Verify, and would continue the practice of “Cap-Gap.”
- The current STEM OPT framework remains in effect through May 10, 2016.
- USCIS is expected to implement the new proposed regulation before May 10, 2016.
- Current F-1 students needing a STEM extension of OPT are advised to move forward with applying for one.
- F-1 students currently working under a STEM extension of OPT should not expect that their employment authorization will be invalidated or questioned.
In the summer of 2015, a federal court in Washington, DC held that the manner in which the USCIS implemented the STEM extension process in 2008 was improper. The court said that USCIS was free to issue a new regulation governing the STEM extension process through proper rulemaking procedures, but that the current STEM extension framework would no longer be in effect as of February 12, 2016, so that USCIS had time to issue the new regulation. USCIS issued the proposed new regulation in October 2015; among its provisions are an extension of the STEM OPT period from 17 months to 24 total months, and new requirements for the implementation of formal mentoring and training plans by employers for F-1 students using STEM extensions of OPT. As in the old regulation, the USCIS will continue to require that anyone receiving a STEM extension of OPT work for an employer that is enrolled in E-Verify, and continues the practice known as “Cap-Gap” for F-1 students with timely-filed H-1B petitions.
Because the USCIS received 50,000 public comments in response to the proposed regulation (significantly more comments than for many similar proposed regulations in the past), the USCIS asked the court for an extension of the February 12, 2016 deadline. In late January 2016, the court agreed, extending the date by which the current STEM extension framework would no longer be in effect to May 10, 2016. This extension gives the USCIS time to analyze the public comments, make any changes to the proposed new STEM extension regulation as needed, and publicize the final new regulation, before the May 10, 2016 date. We expect the USCIS to finalize the new rule before this May 10, 2016 date. Current F-1 students are advised, if eligible, to continue to seek and apply for STEM extensions of OPT, and we have no reason to expect that F-1 students currently working on a STEM extension of OPT will have their employment authorization cancelled, invalidated, or questioned.
– Scott A. Kuhagen