DHS Issues Final Rule Expanding STEM OPT Extensions for 24 Months

March 15, 2016

Published in the Federal Register on March 11, 2016, the Department of Homeland Security (DHS) has issued a new final rule entitled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.”   Among the changes that will take effect on May 10, 2016 and replace the prior 17 month STEM OPT extension are the following:

  • Lengthens STEM OPT extension period to 24 months.  Notably, F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM OPT degree at a higher education level are now eligible for one additional 24 month STEM OPT extension.
  • Defines which fields of study may form the basis for a STEM OPT extension, based on Department of Education Classification of Instructional Program (CIP)  categories.
  • Requires employers to implement formal training programs to augment students’ academic learning through practical experience.
  • Extends STEM OPT to previously obtained degrees.   New rule permits an F-1 student participating in a 12 month period of post-completion OPT based on a non-STEM degree from an accredited US college/university to use a prior eligible STEM degree from an accredited U.S. college/university as a basis to apply for a STEM OPT extension.
    • Note that the new practical training opportunity must be directly related to the previously obtained STEM degree and, of course, the employer must be a participant in the government’s E-Verify program.
  • Provides safeguards for U.S. workers in related fields by requiring the terms and conditions of a STEM practical training opportunity (including duties, hours, and compensation) to be commensurate with those applicable to similarly situated US workers.  In completing the Form I-983 Training Plan, the employer must attest that: 1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; 2) the student will not replace a full or part-time temporary or permanent US worker; and 3) the opportunity will help the student attain his or her training objectives.
  • Requires school accreditation, employer site visits and employer reporting.
    • DHS will provide notice to the employer 48 hours before any site visit unless a complaint or other evidence of noncompliance with the STEM OPT extension regulations triggers the visit, in which case DHS may conduct the visit without any notice.
  • Increases the number of days an F-1 student may remain unemployed during the practical training period to 90 days maximum for the initial period of post-completion OPT plus an additional 60 days (for a total of 150 days) for a student who obtains a 24-month STEM OP Extension

The new final rule retains these provisions from the 2008 rule:

  • Requires employers to be enrolled in and remain in good standing with E-Verify and to report any changes in the STEM OPT student’s employment to the student’s DSO within five business days.
  • Requires STEM OPT students to report to their DSOs any name or address change or any changes in name or address of their employer.
  • Maintains Cap-Gap Extension until October 1 for F-1 students with timely filed H-1B Petitions who have requested a change of status from F-1 to H-1B.

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