DHS Issues Advisory for Students with Existing 17-Month STEM OPT EADs as of May 10, 2016

March 15, 2016

Following the published announcement of the new F-1 STEM OPT 24 month final rule, the Department of Homeland Security has issued the following  important update and alert for any 17 month STEM OPT F-1 student whose EAD was issued on or before May 9, 2016:

Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked.

As a transitional measure, from May 10, 2016, through August 8, 2016, certain students with such EADs will have a limited window in which to apply for an additional seven months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT.

To qualify for the additional seven-month extension, the student must satisfy the following requirements. 

These requirements are necessary to ensure that those who receive the additional seven-month extension are covered by this rule’s improved compliance, reporting and oversight measures.

•  150 Calendar Days Remaining on EAD

To qualify for the seven-month extension, such students must have at least 150 calendar days remaining before the end of the student’s 17-month OPT period at the time the Form I-765, “Application for Employment Authorization,” is filed, and they must otherwise meet all requirements of the 24-month STEM OPT extension.

DHS will not automatically convert 17-month extensions into 24-month extensions, as this would be inconsistent with many parts of the new rule, including the requirements related to Training Plans, employer attestations and reporting requirements.

The 150-day minimum remainder of OPT time guarantees that a student who obtains an additional seven-month extension will have at least one year of practical training under the enhancements introduced in the 24-month STEM extension. These enhancements include:

• The introduction of training plan goals and learning objectives.
• Evaluation of the training and goals.
• Lengthened unemployment period.
• Safeguards for U.S. workers, including commensurate compensation for the F-1 student.
• Reporting requirements.
• Site visits.

For students who choose to seek an additional seven-month extension, the new enhancements apply upon the proper filing of the Form I-765 requesting the seven-month extension.

• Timely Filing of the Seven-Month Extension

The STEM OPT student must properly file a Form I-765 with USCIS, along with applicable fees and supporting documentation, on or before August 8, 2016, (i.e., 90 days after May 10, 2016) and within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record.

This 90-day window for filing such applications provides sufficient time for students to submit the completed and signed Training Plan to their DSO, to obtain the necessary Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” and recommendation from the student’s DSO, as well as to fulfill other requirements for the 24-month extension.

DHS recommends that students who choose to request the additional seven-month extension obtain the necessary DSO recommendation and file their application as early as possible in advance of the August 8, 2016, application deadline. Visit USCIS’s website for the current processing times.

• Fulfill 24-Month STEM OPT Extension Requirements

The student must meet all the requirements for the 24-month STEM OPT extension as described on the student eligibility page.

This includes, but is not limited to, the submission of the completed and signed Form I-983 to the student’s DSO. STEM OPT students applying for this additional seven-month extension must be in a valid period of OPT, but are not required to be in a valid initial period (usually 12 months) of post-completion OPT as would normally be required for a STEM OPT extension request.

Existing 17-Month STEM OPT Extension, Not Extended

The new requirements do not affect current 17-month STEM OPT participants, except to the extent that such eligible participants may choose to apply for the additional seven-month OPT period available to them under the transition provisions of the final rule.

Unless and until a student with a 17-month STEM OPT extension properly files the application for the seven-month extension under these transition procedures, the student, the student’s employer and the student’s DSO must continue to follow all of the terms and conditions that were in effect when their 17-month STEM OPT employment authorization was granted.

Upon the proper filing of the application for the additional seven-month STEM OPT period, the student, the student’s employer and the DSO will be subject to all but one of the requirements of the 24-month STEM OPT extension period.

Students currently on 17-month STEM OPT extensions who do not seek seven-month extensions will be permitted to complete their authorized 17-month STEM OPT period, barring any termination or revocation of their EAD.

Approval

If an application for a seven-month extension is approved, USCIS will issue an EAD with a validity period that starts on the day after the expiration date stated in the 17-month STEM OPT EAD.

The new terms and conditions (i.e., Form I-983 requirements) apply upon the date the student properly files the Form I-765 requesting the seven-month extension and not on the day approval is received.

Denial

If an application for a seven-month extension is denied, the student, the student’s employer and the student’s DSO must, subsequent to the denial, continue to follow all the terms and conditions that were in effect when their 17-month STEM OPT employment authorization was granted.

Unemployment

The 150-day unemployment limit that is applicable to students who are granted the 24-month STEM OPT extension is also applicable to students whose seven-month extension is approved under the transitional plan. These students are allowed an additional 60 days of unemployment, for a total of 150 days of allowable unemployment (90 days during the initial period of post-completion OPT plus an additional 60 days during the extension period). This 150-day unemployment limit will apply to a student seeking a seven-month extension only upon approval of that extension (and not during the filing of such extension).

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TAGS: E-Verify, F-1, Immigration, STEM OPT