New STEM OPT Extension Rules

The Department of Homeland Security (DHS) has amended its F-1 nonimmigrant student visa regulations on Optional Practical Training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education.

The revised and broadened STEM OPT program effective from May 10, 2016, will enable more F-1 STEM students to be eligible for an extension of their OPT. Those who qualify will be granted a longer period of employment authorization provided the F-1 student’s degree is directly related to the STEM OPT job. Also the employers now will be subject to stringent new requirements.

The rules now allow such F-1 STEM students who have elected to pursue 12 months of OPT in the United States, to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students. Now qualifying F-1 students will thus be eligible for a total of 36 months of OPT employment authorization, including the initial 12-month OPT period. Students who have already been granted a 17-month STEM OPT extension under earlier rules can seek a further 7 months of work authorization subject to the requirements and obligations of the new rules.

F-1 students with a previously obtained STEM degree can now qualify for the OPT extension as long as their prior degree is from a duly accredited school and directly-related to the position. It also must have been conferred within 10 years before the application for the OPT extension. Another change in the new rules is that the total number of days of unemployment for the student has been increased to 150 (from 120 previously).

The rule also requires the implementation of formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers. The training plan (Form I-983) with specific details is prepared and signed by the employer and student, and has to be submitted to the DSO prior to applying for a STEM OPT. It does not need to be submitted with the EAD extension request, though USCIS may issue a Request for Further Evidence asking for the Training Plan.

The new rules broaden the employment opportunities for F-1 STEM students, but the significant new obligations on students, employers and schools will require prompt planning and timely filing, particularly critical for those who want to file for a 7-month extension of their current STEM OPT (and for whom USCIS has a small window of just three months till August 8th 2016.)

The standard 12 month OPT program is unchanged. Also unchanged is the fact that having submitted a timely STEM EAD Extension, the student can continue to work even after expiry of the previous EAD, for a period of 180 days pending final adjudication. As with the prior 17-month STEM OPT extension, the rule authorizes STEM OPT extensions only for students employed by employers who participate in E-Verify. The rule also includes the ‘Cap-Gap’ relief for any F-1 student with a timely filed H-1B petition & request for change of status. This, in effect, will now give a student three tries for three consecutive years in the annual H-1B lottery.