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24-Month STEM OPT Extension for F-1 Students

24-Month STEM OPT Extension for F-1 Students

These materials are provided solely for informational purposes and are not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.


OVERVIEW

When does the new rule take effect? 

Beginning May 10, 2016, USCIS will adjudicate all STEM OPT applications under the standard of the new final rule. 


What are the highlights of the new rule?

24 Months of Work Authorization:The regulation extends STEM OPT work authorization from 17 months to 24 months. This allows employers more flexibility in hiring, as STEM-eligible F-1 employees will now be eligible for a total of up to three years of work authorization post-graduation.

Allows More Opportunities for H-1B Selection:STEM OPT students will have the opportunity to apply for the H-1B lottery in additional seasons.

Formal Mentoring and Training Plans:Employers must incorporate a formal training program that includes concrete learning objectives with proper oversight.

Employer Site Visits:DHS may visit the employer’s site to monitor compliance with the regulation.

Clarified STEM Designations:The regulation more clearly defines which degrees can serve as the basis of a STEM OPT extension.

School Accreditation: The regulation requires that students earn their qualifying degree from a U.S. educational institution accredited by the U.S. Department of Education.

Two Lifetime STEM Extensions:A student may base a STEM OPT extension on the student’s most recent academic degree, or may base the extension on a STEM degree that the student earned earlier in the U.S. at a different educational level. Under this rule, a student may be eligible for up to two separate STEM OPT extensions over the course of his or her academic career, upon completing two STEM degrees in the U.S. at different educational levels (such as a Bachelor’s and a Master’s).

Safeguards for U.S. Workers:The regulation requires the terms and conditions of a STEM OPT opportunity to be commensurate with those applicable to similarly situated U.S. workers. Employers also attest must that the student will not replace a full- or part-time temporary or permanent U.S. worker.


Eligibility

Which students are eligible for the 24-month STEM OPT extension?

Students who have received a STEM designated degree from an accredited U.S. institution, and whose initial OPT work authorization expires after May 10, 2016, are eligible to file for their 24-month STEM extension as early as 90 days before their EAD expires. They must file for an extension no later than the expiration date of their EAD. 


Which students are eligible to receive a seven-month extension of their current 17-month STEM OPT work authorization?

Students who hold a STEM OPT 17-month extension valid through May 10, 2016 or later may qualify to file for a seven-month extension during the May 10 - August 8, 2016 filing window for seven-month extensions. Their filing deadline is 150 calendar days before their EAD expires or no later than August 8 if the student has more than 150 days left on the EAD on August 8, 2016.

A student who does qualify for and apply for the seven-month extension becomes subject to the 24-month STEM OPT compliance rules, including reporting to the DSO, starting on the date the application is filed with USCIS. 

To be eligible for the seven-month extension, the student must meet all of the following conditions:

  • Properly file Form I-765 with USCIS on or after May 10, 2016 and on or before August 8, 2016, and within 60 days of the date the DSO enters the recommendation for the 24-month OPT extension into the student’s SEVIS record, along with applicable fees and supporting documentation, including:
    • A new Form I-20 endorsed on or after May 10, 2016, indicating that the DSO recommends the student for the extension;
    • A completed and signed Form I-983 Mentoring and training plan;
    • Any other documentation to establish that the requirements for a STEM OPT extension under the standards of the new final rule have been met; AND
  • File the I-765 application no later than 150 days prior to the end of his or her 17-month STEM OPT expiration; AND
  • Meet all of the requirements for the 24-month STEM OPT extension under the new final rule (U.S. accredited school, E-Verify company, formal training plan, etc.) except the requirement that the student must be in a valid period of standard 12-month post-completion OPT at time of filing. 

What happens to students who have 17-month STEM OPT extension pending on May 10, 2016?

USCIS will send a Request for Further Evidence (RFE) to any applicant who filed for a 17-month STEM OPT extension under the current rule and whose application is still pending on May 10. 

The RFE will request documentation establishing that the student is eligible for a 24-month OPT extension under the new final rule, including:

  •  A new Form I-20 endorsed on or after May 10, indicating that the DSO recommends the student for a 24-month STEM OPT extension; and
  • A completed and signed Form 1-983 Mentoring and training plan with documentation to establish satisfaction of the requirements under the new rule.
  • Note that students will not have to pay an additional fee or refile an I-765.

 Transitional note:

  • DHS recognizes that, following this rule’s effective date, some students may prefer to withdraw their pending application for a 17-month STEM OPT extension and instead file a new application for a 24-month STEM OPT extension. Before a student decides to do so, however, the student should understand the applicable filing deadlines and ensure that he or she does not lose F-1 status.
  • Note that a student must be in a in a valid period of post-completion OPT at the time of filing file for a STEM OPT extension.
  • Thus, if a student withdraws an application for a STEM OPT extension after his or her period of post-completion OPT has ended, the student will no longer be eligible to file for a STEM OPT extension (81 FR 13104).

Which students are ineligible to extend their 17-month STEM OPT work authorization?

Any student whose 17-month STEM EAD expires before October 7, 2016 is ineligible to apply for the seven-month extension. (Students who have fewer than 150 days remaining on their 17-month STEM EADs on the date that they are able to properly file their STEM OPT extension.) These students have a 60-day grace period after the expiration of their EAD, during which they are not work authorized, to leave the U.S. 


Adjudication

Who will review the applications for STEM extensions?

DHS clarifies that USCIS maintains the discretion to request and review all documentation when determining eligibility for benefits. See 8 CFR 103.2(b)(8)(iii). Accordingly, USCIS may request a copy of the training plan (if it is not otherwise available) or other documentation when such documentation is necessary to determine an applicant’s eligibility for the benefit, including instances when there is suspected fraud in the application. DHS further clarifies that USCIS would deny an Application for Employment Authorization if it finds that any of the regulatory standards are not met. 


What role will the DSOs have?

DHS clarifies that Designated School Official (DSO) approval of a request for a STEM OPT extension means that the DSO has determined that the training plan is complete and signed, and that it addresses all program requirements.

DHS anticipates that such review will be fairly straightforward. The Department does not expect DSOs to possess technical knowledge of STEM fields of study.

When reviewing the training plan for completeness, the DSO should confirm that the plan:

  1. Explains how the training is directly related to the student’s qualifying STEM degree;
  2. Identifies goals for the STEM practical training opportunity, including specific knowledge, skills and/or techniques that will be imparted to the student, and explains how those goals will be achieved through the work-based learning opportunity with the employer;
  3. Describes a performance evaluation process to be utilized in evaluating the OPT STEM student; and
  4. Describes methods of oversight and supervision that generally apply to the OPT STEM student. The DSO also should ensure that all form fields are properly completed. So long as the training plan meets these requirements, the DSO has met his or her obligation under the rule. (81 FR 13095).

Requirements for Students

What does the new rule require of students?

Reporting Requirements:

  • Students must confirm biographical, residential and employment information every six months.
  •  Students must report to the DSO with an annual self-evaluation of their progress in practical training.
  • Student and employer are obligated to report changes in employment status and material changes to the student’s formal training plan. 

Accredited degree:

  • Student must have a degree from an accredited U.S. institution

Requirements for Employers

What requirements for employers continue from the old rule?

Requirements:

  • The employer must be an E-Verify company.
  • The training conducted pursuant to the plan must be in compliance with all applicable federal and state requirements relating to employment.
  • Employers must report, within 48 hours, if the student’s employment terminates before the end of the OPT period.

What does the new rule require of employers?

Formal Mentoring and Training Plans:

  •  A STEM OPT employer must agree to provide a work-based formal training program related to the student’s academic studies, including identifying learning objectives and a plan for achieving those objectives, overseeing the program, supervising the student, and providing performance evaluations every six months, which must be reported to DSOs on a newly created government form (I-983).
  • Employers may use existing training programs as the basis for evaluating student progress.
  • Rule says the purpose of the training plan is to help ensure the integrity of the STEM OPT program by holding employers and students jointly responsible for monitoring the students’ progress and continued learning.
  • DHS says it does not intend to require duplicative training programs or to necessarily require the creation of new programs or policies solely for STEM OPT students. Nor does DHS intend to require training elements that are unnecessary or overly burdensome for F-1 students seeking to engage in work-based learning. However, employer-specific training programs and policies may not always align with the rule’s primary policy goals.
    • For example, some businesses may focus more on managing a workload or maximizing individual output, whereas DHS’s primary concern is the student’s continued learning and the relationship between the work-based learning experience and the student’s studies.

 Employer Attestations:

  •  Employer must agree not to replace any U.S. workers with the foreign student and to provide wages and benefits comparable to other similarly situated U.S. workers employed at the worksite.
  • A student’s practical training opportunity may not result in the termination, laying off, or furloughing of any full- or part-time, temporary or permanent U.S. workers.

 Reporting Requirements:

  • Employer and student are obligated to promptly report, within 5 business days, any material changes to the student’s formal training plan and any changes in the student’s employment status.
  • Material changes include: decreased compensation, change in hours worked, change in worksite address, change in employer’s name, change in student’s position, significant changes or deviations from the student’s formal training plan.

 Compliance Requirements:

  • Employer compliance efforts may be monitored by DHS through on-site audit visits, with 48 hours of prior notice unless triggered by a complaint or other evidence of noncompliance, to determine compliance with the regulatory requirements and employer maintenance of training program records. 

Site Visits

When can ICE come to an employer’s worksite?

ICE will provide notice 48 hours before a routine site visit. However, if the site visit is triggered by a complaint or other evidence of noncompliance, ICE can visit at any time, unannounced.


How should employers and students prepare for site visits?

In preparation for ICE site visits, employers should maintain an active file for each F-1 STEM OPT student that includes:

  • Record of student’s current employment status, including current position, hours worked per week, current salary, and any changes in employment status
  • Records of student’s current biographical information (address, full legal name, contact information)
  • Records of employer’s information, including E-Verify number and address
  • Copies of student’s I-20s, current work authorization card, and most recent I-94
  • Copies of student’s formal training plan and documentation of any changes made to the plan
  • Records of student’s progress in achieving the objectives detailed in the plan
  • Records of student’s supervisor and any of supervisor’s feedback on student’s progress and work performance
  • Records of any annual self-evaluations the student has submitted 

STEM OPT and H-1B

Some of our F-1 student employees are filing for H-1Bs this H season. When will they know whether or not they’ve been selected, and whether they will need to prepare materials for their STEM OPT extension?

H-1B applicants should know by the end of May or early June whether they have been selected. For those with filing deadlines in May or June, they may not know about fiscal H selection in time to avoid having to move ahead with preparing the required extension documents.


How does the new rule affect cap-gap?

Cap-gap remains in effect under the new rule. Cap-gap provisions extend an F-1 student’s duration of status and any current employment authorization until October 1, if the student is the beneficiary of a timely filed H-1B petition filed by a cap-subject employer requesting a change of status with a start date of October 1.

A student in cap-gap who meets the eligibility requirements for a 24-month STEM OPT extension may file his or her Application for Employment Authorization, with the required fee and supporting documents, up to 90 days prior to the expiration of the cap-gap period on October 1. 8 CFR 214.2(f)(11)(i)(C).

If an F-1 student is the beneficiary of a timely filed petition for a cap-subject H-1B visa, with a start date of October 1, the F-1 status and any OPT authorization held on the eligibility date is automatically extended to dates determined by USCIS allowing for receipt or approval of the petition, up to September 30. The cap-gap OPT extension is automatic, and USCIS will not provide the student with a renewed EAD. However, F-1 students in this situation can request an updated Form I-20 Certificate of Eligibility from the DSO, annotated for the cap-gap OPT extension, as well as proof that the Form I-129, Petition for a Nonimmigrant Worker, was filed in a timely manner. (81 FR 13100).


Travel

Under the new rule, can a student travel during the cap-gap period?

During the cap-gap period, a student can travel and re-enter the United States provided that:

  • The student has a valid F-1 visa at the time of re-entry;
  • The student has a Form I-20 that reflects the cap-gap benefit and that has been properly endorsed with the DSO’s travel signature; AND
  • The H-1B petition filed on behalf of the student has been approved before the student travels (i.e., under longstanding INS/DHS policy, an applicant who departs the United States while a change of status application is pending is deemed to have abandoned the change of status application; in such a case, the student’s cap-gap benefit likewise would end).

DHS clarifies that an F-1 student generally may travel abroad and seek readmission to the United States in F-1 status during a cap-gap period if:

  • The student’s H-1B petition and request for change of status has been approved;
  • The student seeks readmission before his or her H-1B employment begins (normally at the beginning of the fiscal year, i.e. October 1); AND
  • The student is otherwise admissible.
  • However, as with any other instance in which an individual seeks admission to the United States, admissibility is determined at the time the individual applies for admission at a port of entry. (81 FR 13102)

Travel is not allowed while H-1B status is pending.

DHS also notes that “if an F-1 student travels abroad before his or her H-1B change-of-status petition has been approved, USCIS will deem the petition abandoned. Consequently, such a student no longer would be authorized for F-1 status during the cap-gap period based on the H-1B change-of-status petition and thus would be unable to rely on the cap-gap provision’s extension of duration of status for purposes of seeking readmission as an F-1 student. This has been the legacy INS and USCIS interpretation of its change-of-status authority under the INA for decades, applicable to all changes from one nonimmigrant status to another, not just those involving F-1 nonimmigrants. As such, DHS declines to adopt the suggestion to allow travel for cap-gap students while a change-of-status petition is pending.” (81 FR 13102).


Obtaining a Second STEM OPT Extension

Is it possible for students to obtain a second STEM extension?   

Yes. Students are allowed two lifetime 24-month STEM extensions. Students can qualify for a second extension after completion of a second STEM designated degree from an accredited U.S. institution at a different educational level (ex. completing a Master’s degree after a Bachelor’s degree) or by having completed a previous STEM designated degree from an accredited U.S. institution at a different educational level. 


How can a student receive a second STEM extension based on a previously earned STEM degree?

Under the current 17-month rule, an application for STEM OPT can be based only on the degree that served as the basis for the student’s standard 12-month post-completion OPT. The 24-month rule permits students to use a previously obtained STEM degree from an accredited U.S. educational institution as a basis to apply for a STEM OPT extension, even if it did not serve as the basis for the student’s standard 12-month post-completion OPT, under the following conditions:

  • The prior degree was conferred no more than 10 years before the DSO recommends a STEM OPT extension in SEVIS based on that degree;
  • The prior degree was conferred by a U.S. educational institution that is accredited and SEVP-certified at the time the student’s DSO recommends the student for the 24-month OPT extension;
  • The prior degree is in a degree program category included on the current STEM Designated Degree Program List at the time of the DSO recommendation;
  • The practical training opportunity that is the basis for the 24-month STEM OPT extension relates directly to the prior degree; AND
  • The prior degree was actually conferred (i.e., a student who uses a prior degree cannot take advantage of the "all but thesis or dissertation" exception).

Transferring, Termination of Employment, and Changes in Immigration Status

Can students transfer employers under the new rules?

Yes. Students can transfer employers, but the new employer must complete a new training plan and comply with all other requirements of the new rule.  The student must submit a new form I-983 and have a new I-20 issued.  The student does not need to submit a new application for work authorization (form I-765). 


What do employers need to do to ensure compliance with the new rule when a student changes to H-1B or another lawful immigration status?

Employers should notify the student’s DSO that the student has obtained a different lawful immigration status and no longer needs to comply with the F-1 STEM OPT regulations within 5 business days of the change.  


What do employers need to do to ensure compliance with new rule when a student’s employment is terminated?

Employers must notify the relevant DSO no later than five business days after the termination of a student’s employment, if that termination was before the end of the student’s authorized OPT period. (This is increased from the previous 48-hour notification requirement.)


What do employers need to do to ensure compliance with the new rule when a student’s STEM OPT work authorization expires?

The student must stop working at the end of his or her period of work authorization, unless the student has an automatic extension of work authorization until October 1 under cap-gap. Students have a grace period of 60 non-work-authorized days to prepare for their departure from the U.S. 


Unemployment and Volunteer Work

What does the new rule say about student unemployment?

The final rule increases the number of additional days that an F-1 student may be unemployed during the STEM OPT extension period to 60 days. The final rule retains the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allows an additional 60 days (for a total of 150 days) for students who obtain a 24-month STEM OPT extension.


Does the new rule allow volunteer work to count as OPT employment?

No. Volunteer or other unpaid positions cannot support the OPT STEM extension. The employer must make attestation stating that the F-1 student will receive compensation commensurate to that provided to similarly situated U.S. workers.

 

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