On March 11, the Department of Homeland Security (DHS) issued the highly anticipated final rule permitting qualifying F-1 foreign students with science, technology, engineering and math (STEM) degrees earned in the United States to extend their optional practical training (OPT) work authorization period by 24 months, in addition to the 12-month standard period of OPT available for all F-1 foreign graduates in all fields. This 24-month extension effectively replaces the 17-month STEM OPT extension previously available under the prior regulation. The new rule will become effective on May 10, 2016.
The net result of this new STEM OPT rule is that qualifying STEM graduates will now receive an aggregate of 36 months of STEM OPT work authorization in the United States, thereby permitting foreign students to remain in the United States after graduation to work and receive practical training relating to one’s respective field of study. The new STEM OPT extension also offers employers an additional 7 months to review the performance of foreign STEM OPT workers prior to deciding whether to pursue temporary (H-1B) or permanent employment (green card) sponsorship. Thus, the new rule allows STEM graduates and employers more flexibility and makes the United States an even more attractive destination for potential STEM international students.
Practical Effect Of The New Rule:
Beginning on May 10, U.S. Citizenship and Immigration Services (USCIS) will issue Requests for Further Evidence (RFEs) asking students with pending STEM OPT extension applications whether they wish to amend their application from 17 to 24 months. Alternatively, students with pending applications also have the option to withdraw and re-file a new application with a 24-month request, but with the caveat that a student can only apply for a STEM OPT extension if post-completion OPT has not yet expired.
Students who have already received a 17-month STEM EAD will be able to file for a 7-month extension between May 10, 2016 and August 8, 2016, so long as 150 days still exist before the expiration of their 17-month STEM EAD and they file within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record and other requirements are met, and they meet all other requirements for the 24-month STEM OPT extension.
The new STEM OPT rule, in combination with the existing H-1B cap-gap rules, will now permit many qualifying STEM graduates 3 “bites at the apple” at the H-1B lottery instead of 2. With the possibility of 3 full years of work authorization, some employers may opt to pursue sponsorship for permanent residency (for STEM graduates who are from countries with available visa numbers) rather than rely on obtaining work authorization through the highly coveted H-1B program.
Employer Obligations:
Consistent with the former rule, STEM OPT extensions are only available for students working for employers who are participating in the E-Verify program. The new STEM OPT rule also adds increased oversight of the STEM OPT program, including: (i) individualized training plans developed by the employer and the student; (ii) regular student reporting to the college/university’s DSO; (iii) completion by the employer of an attestation that the student will not replace U.S. workers; (iv) a requirement that STEM OPT students are offered the same terms and conditions (including compensation) as similarly situated U.S. workers; and (v) limitation of the extension to students with degrees from accredited schools.
Conclusion:
The new rule was drafted in order to resolve the challenge to the faulty administrative process utilized to pass the STEM OPT rule created under the Bush Administration. In addition to reviving the STEM OPT extension in compliance with required rulemaking procedures, DHS took the opportunity to extend the validity period. This is certainly a welcome result, especially when one considers the grim 33% chance a foreign national graduate faced last year in connection with being selected in the H-1B lottery.
If you have any questions about the STEM OPT extension or its potential effect on the H-1B cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.
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