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Breaking News: STEM OPT Update

22:35 19 October in News Updates
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Breaking News:  DHS Issues Proposed Rule

“Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students”

Today the Department of Homeland Security (“DHS”) issued an Advance Copy of proposed rulemaking related to F-1 students with STEM degrees, as well as cap-gap relief for all eligible F-1 students.   DHS issued this Rule on the deadline under the Administrative Procedures Act to allow for the Rule to take effect prior to February 2, 2016, thereby preventing the possible termination of STEM OPT work authorization on that date. 

Among other significant changes, the Proposed Rule addresses the technical failure under the Administrative Procedures Act which is the basis of the litigation which threatens to end STEM OPT work authorization on 2/2/16.   As a result of this rulemaking, it is very likely STEM OPT will not terminate on 2/2/16.  In fact, if the Rule is issued without change, it would increase the duration of STEM OPT from 17 to 24 months. 

The Proposed Rule is scheduled to be published in the Federal Register on 10/19/15 with public comments due 30 days after publication.  The Final Replacement Rule must then be published by 12/14/15.

The Proposed Rule – Changes to Existing STEM OPT Program 

The Rule as currently drafted would result in the following:

–      Allow 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 would replace the 17-month STEM OPT extension currently available to certain STEM students.

–      Require the implementation of formal mentoring and training plans by employers

–      Add wage and other protections for STEM OPT students and U.S. workers

–      Allow extensions only to students with degrees from accredited schools

–      Would authorize STEM OPT extensions only for students employed by employers enrolled in U.S. Citizenship and Immigration Services’ (USCIS’) E-Verify employment eligibility verification program.  (No change from current regulations.)

–      Retains “Cap -Gap” relief.  “Cap-Gap” relief was first introduced in 2008 for any F-1 student with a timely filed H-1B petition and request for change of status. This Cap-Gap relief allows such students to automatically extend the duration of F-1 status and any current employment authorization until October 1 of the fiscal year for which such H-1B status is being requested.  (No change from current regulations.)

What is STEM OPT?

Optional Practical Training (OPT) for F-1 students is limited to 12 months and must be completed within 14 months of the student’s graduation. However, some students may be eligible for an additional 17 months of OPT following the initial 12-month period based on a STEM (Science, Technology, Engineering, Mathematics) extension. A student may be eligible for a 17-month STEM extension if the student’s employer is enrolled in E-Verify and agrees to report the student’s departure within 48 hours.

How do I apply for a STEM Extension?

The STEM subject must be in the major or dual-major of the student’s most recent degree received.  The F-1 student may request the 17-month STEM extension up to 120 days prior to the end of post-completion OPT and employment authorization will be automatically extended for a period of 180 days. However, the student must ensure that the Form I-765, Application for Employment Authorization for the STEM extension, is received by USCIS before the expiration of the current OPT period. USCIS recommends filing the STEM extension between 90 and 120 days prior to the expiration of the student’s current OPT.

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