On Friday, March 11, 2016, the Department of Homeland Security (DHS) published as a Final Rule new regulations extending the F-1 Student Optional Practical Training (OPT) STEM extension to a full 24 months following the normal 12-month period of work authorization generally afforded by most universities and colleges in the United States.

Under the current rule, the maximum STEM OPT period is 17 months, giving a total of 29 months of regular and STEM OPT. Under the new rule a total of 36 months of work authorization is possible for those F-1 students with STEM (Science, Technology, Engineering or Mathematics) majors, if the STEM extension employer is enrolled in E-verify. This longer period of total work authorization should allow F-1 students eligible for STEM OPT to go through three cycles of the H-1B annual lottery.

“Cap-Gap Coverage” and Other Benefits of the New STEM Extension Regulation

The new rule also broadens the array of degree fields that would qualify for a STEM extension and provides a mechanism for future public notice when the DHS intends to add additional degree fields to the qualifying list.

Under the new regulation, F-1 students working pursuant to a STEM extension may still maintain status during periods of unemployment so long as the total period of unemployment during the 36 months does not exceed 150 days.

Finally, the new regulation retains the “cap gap extension” provision of the 2008 regulation. This helpful provision affords an automatic extension of OPT work authorization to students who are the beneficiary of a petition requesting a change of status to H-1B that is filed before the student’s OPT work authorization expires and requests an H-1B start date of October 1st, the beginning of the next fiscal year. As a result, if an H-1B petition is selected in the H-1B “lottery”, the student may maintain continuous employment authorization through October 1st, even though the student’s OPT work authorization (with or without the STEM extension) would otherwise expire between April 1st and October 1st. Limitations apply that restrict international travel while an H-1B petition is pending and the individual is working pursuant to the “cap-gap” authorization.

The DHS is launching a webpage with additional content for employers regarding F-1 OPT work authorization and the STEM extension.

Additional Requirements of New STEM Extension Regulation

In exchange for the additional 7-month benefit period, and in order to provide greater U.S. worker protections, the new DHS regulation also implements the following:

1. Additional reporting requirements for students, universities and employers – Students and Designated School Officials (DSOs) must confirm the validity of biographical, residential, and employment information. The student must submit an annual self-appraisal, signed by the employer, to report progress in the practical training program. The student and employer must report changes in employment status and are obligated to report material changes in the training plan.
2. Wages and working conditions – Employers must attest that the terms and conditions of the STEM training opportunity are commensurate with the terms and conditions of employment for similarly situated U.S. workers in the area of employment.
3. New employer attestation requirements – Employers must attest that it has the resources and personnel to provide the training, that the student will not displace a part-time or full-time U.S. worker, and that the training program will help the student attain the objectives of the student’s optional practical training.
4. New formal “Training Plan” requirement – Employers must implement a formal training plan designed to supplement the student’s university education through practical work experience.

The training plan and attestations will be required on a new Form I-983, which must be completed by the student and the employer before the student may file an application for the 24-month STEM extension of OPT.

Restrictions on Qualifying Programs

The qualifying STEM degree program must have been completed at an accredited institution of higher education that is SEVP certified. Both accreditation and SEVP certification must be in place at the time the STEM extension is requested.

STEM Extensions Will Be Available to Current OPT Workers Who Had Previous STEM Degrees

Students who previously completed STEM degree programs may be eligible for a “STEM extension” of their current OPT work authorization even if they are currently working pursuant to OPT work authorization granted following completion of a non-STEM degree program. For example, students who recently completed a Master of Business Administration (MBA) degree program may still request a STEM extension of OPT work authorization based on prior completion of a Bachelor’s degree in a STEM program.

Impact on Pending Applications for 17-Month STEM Extension

STEM extension applications approved prior to May 10, 2016, will be approved for only 17 months of work authorization. Pending applications that remain pending after May 10, 2016, will be issued a Request for Further Evidence (RFE), which will require additional documentation to support a 24-month STEM extension. This means that the new requirements, as well as the additional validity period, will apply to applications adjudicated by the CIS after May 10, 2016.

Implications for Upcoming H-1B Cap Filings

As a result of the DHS rule-making, students currently working pursuant to a STEM extension of OPT work authorization should be able to continue their STEM extension employment. Additionally, beneficiaries of H-1B petitions selected in the April 2016 H-1B “lottery” for a start date of October 1, 2016, should be able to take advantage of the automatic extension of work authorization through September 30, 2016.

As always, Foster will continue to monitor changes that impact immigration and work authorization benefits in the United States and will provide additional information in future Immigration Updates^© and on our firm’s website at www.fosterglobal.com.