DHS Releases Published F-1 Visa STEM OPT Regulation

On March 11, 2016, the US Department of Homeland Security (DHS) published the final regulation for F-1 nonimmigrant students on optional practical training (OPT) with degrees in science, technology, engineering, or mathematics (STEM). The expansion of the OPT program was first announced in November 2014 as part of the President's executive action on immigration, see Clark Hill's November 2014 Immigration Update.

The new regulation makes various changes to the current F-1 OPT STEM rule and will take effect on May 10, 2016. Below is a summary of some of the most notable changes.

  • Under the new rule, OPT students with a degree in a STEM field can receive an additional 24 months of optional practical training beyond the 12 months available to most F-1 students (the old rule was 17 months).
  • If an F-1 student uses the 24 month STEM extension, and then enrolls in a higher level STEM program and completes the next degree, the student is eligible to receive a new 24 month STEM extension in addition to the 12 months of OPT available to most F-1 students.
  • In no event may a student be authorized for more than two lifetime STEM OPT extensions. A student who was granted a 17 month OPT extension, whether or not they request an additional seven month period, is considered to have been authorized for one STEM OPT extension, and may be eligible for only one more STEM OPT extension after a second higher degree.
  • STEM extensions will be available to F-1 students in non-STEM degree programs if the F-1 student previously earned a STEM degree from an accredited US university and now works in a position related to their STEM degree.
  • The degree that is the basis for the 24 month OPT extension must be from a US educational institution that is accredited and must be in a science, technology, engineering, or mathematics. A list of STEM degrees can be found here. Additionally, the STEM practical training opportunity that is the basis for the 24 month OPT extension must be directly related to the degree that qualifies the student for the extension.
  • Under the new rule, F-1 students are allowed up to 90 days of unemployment during the initial 12 months of OPT. In addition, F-1 students will be allowed an aggregate of 150 days of unemployment during the 24 month STEM extension. This aggregate includes any post completion OPT time and any subsequent 24 month extension period.
  • Students applying for STEM OPT extensions cannot use a volunteer experience as the basis of the extension.
  • Students may seek practical training opportunities with start-up businesses so long as the employer meets all of the existing and new regulatory requirements and the student cannot provide employer attestations on their own behalf.
  • While not expressly prohibited, it will be very unusual and unlikely for a student to work for more than one employer at the same time during the STEM OPT extension period given that the employer must employ the student for no less than 20 hours per week absent a vacation or a leave of absence.
  • To apply for STEM OPT, a student must complete an individualized form I-983 training plan and obtain the requisite signatures from the STEM employer before the Designated School Official (DSO) may recommend a 24 month OPT extension. The training plan must identify goals for the STEM opportunity, including specific knowledge, skills, and techniques that will be utilized, explain how those goals will be achieved, and explain how the training is directly related to the qualifying STEM degree. The plan must also describe the review process and the methods of oversight and supervision. Students will also be required to complete a yearly self-evaluation of their progress toward achieving the goals set forth in the training plan prior to the conclusion of the STEM training opportunity. The student, as well as the STEM employer, must sign the evaluation.
  • Students with approved 24 month OPT extensions are required to report any changes to their legal name, address, employer name, employer address, and/or loss of employment to their DSO within 10 days of the change. Additionally, students are required to complete a validation report every six months confirming that none of the information above has changed.
  • The new rule introduces additional compliance requirements for employers, including:
    • Reporting the termination or departure of an OPT student to the DSO within five business days of termination or departure.
    • Certifying training plans - Form I-983 must be completed by the student and include a training plan that must be signed and certified by an appropriate individual in the employer's company with signing authority who works onsite at the employer.
    • Providing terms and conditions for STEM practical training opportunities that are commensurate with the terms and conditions of employment for other similarly situated US workers in the same area of employment, including duties, pay, and hours. If the employer does not or has not recently employed more than two similarly situated US workers, the employer remains obligated to attest that the conditions of the STEM opportunity are commensurate with the terms and conditions of employment for other similarly situated US workers in the same area of employment. "Similarly situated workers" includes US workers performing similar duties subject to similar supervision with similar educational backgrounds, industry expertise, employment experience, levels of responsibility, and skill sets. 
    • Employers are forbidden from laying off US workers to hire a STEM OPT F-1 student.
    • The employer that signs the training plan must be the same entity that employs the student and provides the practical training. This means that STEM OPT extensions will not be available for certain types of working arrangements, including multiple employer arrangements, sole proprietorships, employment through staffing agencies, and employment through consulting firms that provide labor for hire. In order to comply with the new requirements, staffing agencies and consulting firms will need to have a person on site at the end customer site monitoring the work of the student and provide the training.
    • DHS may conduct a site visit to any employer to ensure that the employer possesses and maintains the ability and resources to provide structures and guided work-based learning experiences consistent with I-983. DHS will provide 48 hours' notice of any site visit unless the visit is triggered by a complaint or evidence of non-compliance.
  • A student meeting the eligibility requirements mentioned above, may request a 24 month extension by filing form I-765 Employment Authorization Document (EAD) with the required fee and supporting documents up to 90 days prior to the expiration date of the student's current OPT employment authorization. The student seeking a 24 month extension, must properly file the I-1765 form with the United States Citizenship and Immigration Services (USCIS) within 60 days of the date the DSO enters the recommendation for the OPT extension. If a student timely files for a 24 month extension, and properly requests DSO recommendation, but the EAD currently in the student's possession expires prior to a decision on the student's OPT extension, the student's EAD is extended automatically until a decision is made.
  • F-1 students currently on the 17 month STEM extension will be able to request an additional seven month STEM extension (to reach 24 months total). To apply for the seven month extension, F-1 students must have at least 150 days of their 17 month extension period left and the employer must meet the new requirements stated above. Please note, this new rule does not take effect until May 10, 2016. If a student has less than 150 days left of their 17 month extension period on May 10, 2016 they are ineligible for a seven month extension.
  • F-1 students applying for a new CAP subject to H-1B whose F-1 OPT status expires between April 1st and October 1st:
    • Should get their I-20 updated to reflect a new end date of June 1st (unless their OPT expires after June 1st) after the new H-1B has been filed.
    • If the H-1B is "wait listed," the I-20 should be extended to July 28th. 
    • If the H-1B is receipted, the I-20 should be extended to September 30th. 
    • If the H-1B is denied or withdrawn, the OPT status ends 10 days after the date of the denial or withdrawal and a 60 day grace period begins. 
    • If the H-1B is still pending as of October 1st, there is no more OPT extension time available.
    • If the new CAP H-1B is filed with a request for consular processing or port of entry, the OPT extensions mentioned above ("CAP GAP") are unavailable.

For the full version of the published rule, see the Federal Register. While these new requirements may seem burdensome to employers, universities, and students, the new rule allows additional opportunities for students to apply for an H-1B visa while they continue to work in their academic field of study. For more information about H-1B or F-1 visas, visit the Clark Hill Website.