The administration has released its much-anticipated final rule on Optional Practical Training (“OPT”) for international students in F-1 status. The rule will provide F-1 students in Science, Technology, Engineering and Mathematics (“STEM”) fields a total of 36 months of Optional Practical Training (“OPT”), up from the current 29 month limit. The rule also broadens the availability of the “cap-gap” OPT extension to cover applicable periods between the expiration of initial periods of OPT and the effective date of a timely-filed H-1B.
Highlights of the rule include:
For F-1 students whose OPT ends between April 1 and October 1, the rule continues the “cap gap” extension of authorized employment for those students who are beneficiaries of a timely-filed, cap-subject H-1B. Consistently with the current rule, the new rule extends authorized employment until the H-1B is returned, denied, revoked or until October 1, whichever is later. The new rule also clarifies that the “cap-gap” extension ends when the H-1B petition is withdrawn or if it is approved but the student’s change of status is denied.
The new rule provides that a student in a STEM-designated field (click here) can be granted a 24-month “STEM extension” of OPT, in addition to the initial twelve-month OPT. The rule clarifies that the student’s field of study must be among those on the STEM list at the time the application for the STEM extension is filed. The rule also includes provisions which allow students in double majors and dual-degree programs students to use the STEM OPT extension, so long as one of the majors or degrees was in a STEM field.
The new rule provides that students may receive up to two STEM extensions. This means that an F-1 student eligible for a second period of OPT based on a new, higher-level degree can use the STEM OPT extension a second time.
The new rule also expands eligibility for STEM extensions to include students whose most recent degree was not a STEM-designated degree, but who had previously earned a STEM-designated degree from an accredited US school.
The rule continues the requirement that, to qualify for the STEM OPT, the student’s employer must be enrolled in the E-Verify program as to all new hires, at least at the location where the student will receive OPT. The employer remains obligated to inform the student’s school of any termination of employment (or non-authorized absence from work for 5 consecutive days)
The rule includes a new requirement for STEM extensions, now requiring an “individualized training plan” for each student. The student must complete the training plan (new Form I-983) and have it countersigned by the employer. The form is submitted to the student’s school for approval. To be approved, the employer must certify that the duties, hours and compensation of the student are “commensurate” with similarly-situated workers, or if the employer has fewer than three comparable U.S. workers, with the general wages and working conditions of U.S. workers in the area. The employer must also certify that it has the resources to train and evaluate the student and that the STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker.
The rule provides that ICE will conduct site visits to employers, which will normally be announced unless in response to a complaint or other evidence of noncompliance.
The rule provides a transition plan for students who have submitted or will submit a STEM extension prior to the effective date on May 10, 2016. Students with an already-approved 17-month extension will continue to be able to use the STEM OPT after May 10 until it expires, without any new requirements. Likewise, pending applications that are granted before May 10 will be limited to 17 months and need not comply with the new rules. Pending applications not granted by May 10 will receive an RFE requesting an updated I-20 and a completed and signed I-983. Such applications, if approved, will be valid for 24 months.
Students with existing 17-month grants of OPT that expire after May 10, 2016 face a significant deadline. These students may receive an additional 7 months of OPT, so long as they comply with the new rule (including the training plan) and submit the request for extension at least 150 days prior to the end of their current STEM OPT. Students whose STEM OPT ends prior to October 7, 2016 will not be eligible for the additional 7-month extension.
To read a New York Times article about the STEM OPT regulation click here.
For additional information, or to apply for the STEM OPT extension contact us.