On Friday, March 11, 2016, the Department of Homeland Security published its final rule relating to the STEM extension of OPT in the Federal Register. With this new regulation, DHS has revamped the rules for STEM OPT, and in doing so, solves the problem of regulating in this area without the “notice and comment” procedure that a federal judge found objectionable in her decision vacating the former STEM OPT regulation last year.

 

The current 17-month STEM OPT regulation is still in effect through May 9, 2016. The new STEM OPT rules becomes effective on May 10, 2016.

 

The new rule has some important changes and additions to STEM OPT and “Cap-Gap,” in which F-1 students who are participating in OPT can have their F-1 status and work authorization extended with the timely filing of an H-1B cap petition:

 

– STEM OPT is lengthened from 17 months to 24 months starting on May 10, 2016. Employers must still be enrolled in E-Verify. STEM OPT will only be granted to students whose qualifying degrees come from currently accredited schools. STEM OPT students are allowed to be unemployed for a max of 60 days (in addition to 90 days during first 12-month period of OPT).

– The rule expands the range of possible fields in which degrees could support a STEM extension by clarifying it it includes a field included specific Department of Education Classification of Instructional Programs categories.

– Cap-Gap is reinstituted. F-1 students’ duration of status and any current OPT employment authorization will be extended if the student is the beneficiary of a timely-filed H-1B petition and change of status request that is pending or approved by USCIS. Under this provision, OPT is extended until the beginning of the new fiscal year, i.e. until October 1 of the fiscal year for which H-1B status is being requested.

– For F-1 students who subsequently enroll in a new degree program and earn another qualifying STEM degree at a higher educational level, they are eligible for one additional 24-month STEM OPT extension.

– Employers are required to implement formal training programs for STEM OPT students. This new training plan will be described on a new Form I-983, Training Plan for STEM OPT Students, which a university’s Designated School Official must approve before issuing a Form I-20 endorsed for a STEM OPT extension. As part of the training plan, the employer and the student must also do mid-point and final evaluations. Employers may use existing training programs to satisfy some of the evaluation requirements for STEM OPT students.

– Employers must attest that terms and conditions of STEM OPT will be “commensurate” with those applicable to similarly situated US workers, and that STEM OPT students will not be replacing full- or part-time, temporary or permanent US workers.

– If someone is in their regular 12-month post-completion OPT period from a non-STEM degree, but received a STEM degree in the past, they can apply for a STEM extension of OPT of 24 months provided both degrees come from currently accredited schools. The practical training opportunity that will take place during the STEM extension must be directly related to the previously obtained STEM degree.

– DHS is allowed to do site visits at STEM OPT employers, with 48 hours’ notice.

– STEM OPT students must report to their DSOs any changes in their name or address, as well as any changes in their employer’s name and address.

 

While the regulation resolves the regulatory uncertainty regarding STEM OPT overall, this new rule brings up a number of questions:

 

What happens to a F-1 STEM OPT student’s 17-month STEM OPT EAD if it is approved before May 9, 2016?

 

Answer: Nothing. No action is immediately required, and the EAD will be valid until it is expired. DHS has advised that the employer and the student’s DSO must continue to adhere to all the terms and conditions of employment that were in effect when the EAD was issued.

 

What happens if an F-1 student on OPT requested a STEM extension for 24 months and it is approved on or before May 9, 2016?

 

Answer: DHS has advised that in this scenario the student’s Form I-765, Application for Employment Authorization will be treated as a 17-month extension request and will be approved as such in accordance with the prior regulation.

 

Can an F-1 student with a 17-month STEM OPT EAD apply to have their EAD extended for seven months so that s/he receives the 24 total months of STEM OPT envisioned in the new rule?

 

Answer: Yes. Starting on May 10, 2016, and until August 8, 2016, some F-1 students can apply for seven more months of STEM OPT provided they meet the following criteria:

– They have 150 calendar days left of validity on their current 17-month STEM OPT EAD at the time their new Form I-765, Application for Employment Authorization is filed;

– They must have timely filed their Form I-765 with the USCIS, meaning it is filed on or before August 8, 2016 and within 60 days of the date the student’s DSO enters the recommendation for the 25-month STEM OPT extension to the F-1 student’s SEVIS record;

– They must meet all other requirements for the 24-month STEM OPT extension.

 

When the Form I-765 is approved, the USCIS will issue the student an EAD with a validity period that starts the day after the expiration date of their 17th-month STEM OPT EAD.

 

What if an F-1 student’s Form I-765 for a STEM extension of OPT is still pending on May 10, 2016? How will the USCIS handle this?

 

Answer: If an F-1 student’s Form I-765 requesting a STEM extension of OPT is still pending on May 10, 2106, the USCIS will issue a Request for Evidence to the student; the RFE will allow students to essentially amend their I-765 to request a 24-month STEM OPT EAD without having to file a new application and without having to pay an additional fee.

 

The RFE will generally request that F-1 students submit a new Form I-20 that has been endorsed by their university DSO for a 24-month STEM extension of OPT. In order to obtain this Form I-20, the student will have to provide a complete, signed Form I-983, Training Plan for STEM OPT Students, to the DSO (which has also been signed by the prospective STEM OPT employer).

 

DHS has cautioned students that withdrawing a pending STEM extension of OPT request and refiling for a 24-month extension may not necessarily be a wise course of action, as if the student’s original period of 12 months of post-completion OPT has expired that student is no longer eligible to file for a STEM OPT extension. If an F-1 student’s post-completion OPT expires while a STEM extension of OPT application is still pending, the old rule that the student receives an automatic extension of employment authorization of up to 180 days upon the expiration of their current employment authorization remains in effect.

 

Can an F-1 student travel while in the Cap-Gap period?

 

Answer: DHS has clarified in the commentary accompanying the new rule that it will not allow for travel outside the United States for Cap-Gap students while an H-1B change of status petition is pending, consistent with prior USCIS and legacy Immigration and Naturalization service interpretations of the change of status provisions of the Immigration and Nationality Act. Such travel, in the views of DHS, means that an F-1 student would no longer be authorized for F-1 status during the Cap-Gap period and thus cannot rely on the the Cap-Gap provision’s extension of F-1 duration of status for being readmitted as an F-1 student.

 

However, DHS did clarify in the commentary accompanying the new rule that an F-1 student who is in their Cap-Gap period may travel outside the United States and be readmitted as a F-1 student during a Cap-Gap period if:

– The F-1 student’s H-1B petition and request for an automatic change of status from F-1 to H-1B has been approved;

– the F-1 student seeks readmission before their H-1B employment begins (on the date described in the approved petition, usually October 1); and

– The F-1 student is otherwise admissible to the United States.