On Mar 11 2016 by William A. Stock

ICE/SEVP Publishes Final STEM OPT Rule, Effective May 10, 2016; Rule Also Preserves “Cap Gap” For All F-1 OPT Students

Employers, universities and international students in F-1 status have eagerly awaited a new rule allowing F-1 students in Science, Technology, Engineering and Mathematics (“STEM”) fields to obtain a total of 36 months of Optional Practical Training (“OPT”). This rule also includes continued authorization for students on all forms of OPT to receive an automatic extension of employment authorization to cover the gap between April 1, when H-1B petitions can be filed for them, and October 1, which is the effective date for those H-1B petitions that are selected in the H-1B lottery and approved.

The following are the highlights of the final rule:

  • For all F-1 OPT students whose OPT ends between April 1 and October 1, the rule continues the “cap gap” employment authorization for those students who have a cap-subject H-1B filed on their behalf. As in the current rule, the new rule continues employment authorization until the H-1B petition on behalf of the student is rejected in the lottery, denied, revoked by USCIS, or until October 1, whichever is latest. The new rule also clarifies that employment authorization ends when the petition is withdrawn by the employer, and that it ends if the H-1B petition is approved, but the student’s change of status portion of the petition is denied.
  • The rule does not make any changes to the one year of post-completion OPT that can be obtained by any F-1 student. The rule also does not make any changes to pre-completion OPT or to Curricular Practical Training.
  • The new rule provides that a student in a designated STEM field (available from ICE SEVP here) can receive a 24-month “STEM extension” of OPT after completion of a one-year period of OPT. The rule clarifies that the student’s field of study (as reflected by the most recent I-20 for the program) must be on the list of STEM fields at the time of the STEM extension application, and need not have been on the list at the time the student earned the degree. The rule also contains provisions allowing for double major and dual-degree program students to obtain a STEM extension, so long as one of the majors or degrees was in a STEM field.
  • The new rule provides that students may receive up to two STEM extensions in their lifetimes, an increase from the current rule. Note that a student can only receive a second grant of OPT after completing a higher degree (e.g. a student can complete a bachelor’s degree, use OPT, return to school for a Master’s degree and receive a second one year grant of OPT), and so can only receive a STEM extension based on a higher degree than the first one earned.
  • The new rule expands eligibility for STEM extensions to students whose most recent degree was not a STEM degree, but who earned an earlier STEM degree from an accredited US school. For example, a student who majored in Electrical Engineering at the Bachelor’s degree level, and then earned an MBA, is eligible for OPT based on the MBA, and a STEM extension of that OPT based on the Bachelor’s degree.
  • The rule continues the requirement that in order for the student to receive a STEM extension, the student’s employer must be enrolled in the E-Verify program for all the employer’s new hires, at least at the location where the student will receive OPT. The employer continues to be required to inform the student’s school of any termination of the student’s employment (or non-authorized absence from work for 5 consecutive days).
  • The rule contains a significant new requirement for STEM OPT extensions in the form of an “individualized training plan” for each student. The student must complete the training plan form (new Form I-983) and have it countersigned by the employer. The form is submitted to the student’s school, which must review it before recommending a STEM OPT extension. SEVP has launched a web page with resources for completing the training plan, including an explanatory video.
  • As part of signing the I-983, the employer must certify that the duties, hours and compensation of the STEM OPT student are “commensurate” with the employer’s similarly situated workers, or if the employer has fewer than three comparable US workers, with the general wages and working conditions of US workers in the area. The employer also certifies that it has sufficient resources to provide the training and evaluation of the student called for in the training plan, and that the STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker.
  • The rule provides that ICE will enforce the rule through site visits to employers, which will normally be announced unless in response to a complaint or other evidence of noncompliance. ICE will have the ability to prosecute employers who fail to provide competitive compensation, or who replace US workers with STEM OPT students, for false certifications and visa fraud, both felonies. ICE may also pursue civil forfeiture of a company’s assets, or those of its owners.
  • The rule provides a transition plan for students who have submitted or will submit a STEM OPT extension prior to May 10, 2016 when the rule goes into effect. Those students with an already-granted 17 month extension will continue to be able to use those grants of STEM OPT after May 10 until they expire, without any new requirements. Likewise, pending applications that are granted before May 10 will be granted for only 17 months and will not need to comply with the new rules. Pending applications not granted by May 10 will receive an RFE requesting an updated I-20, which the school will only be able to issue if the student has provided the school with a completed and signed I-983. Such applications, if approved, will be valid for 24 months.
  • The most significant deadline for students with existing 17-month grants of OPT that expire after May 10, 2016 is 150 days before the end of their current grant of OPT. The transition rule states that students who received a 17 month grant of OPT before the new rule may receive an additional 7 month grant of OPT, so long as they comply with the new rule (including the training plan) and submit the transition 7-month extension at least 150 days prior to the end of their current STEM extension. As a practical matter, this means students whose current grant of STEM OPT ends prior to October 7, 2016 will not be eligible for the transition 7-month extension of OPT.

We will be having an extensive discussion of the new OPT rule and F-1 compliance at our Spring Seminar on April 19, registration for which will be open next week.