New STEM OPT Extension Training Plan

June 6th, 2016

Under the latest STEM optional practical training (OPT) extension rules that came into effect on May 10, 2016, and which  increase the OPT extension program from 17 to 24 months, USCIS added additional requirements.  One of the most important of these is the training plan that is to be filed on the Form I-983.

Before applying for a STEM OPT extension, a STEM OPT student must complete, sign and submit the Form I-983 Training Plan to the DSO of the school for its recommendation of OPT extension.  The STEM OPT student and the prospective employer must collaborate to complete the form.  The student must complete the first “Evaluation of Student Progress” portion of Form I-983 within 12 months of the listed STEM OPT start date. At the end of the STEM OPT extension, the student must conduct a second, final assessment.  Once the evaluations are complete, the student must obtain signatures from his employer and return the form to the DSO.

The content of the Plan shall include the following:

  • Identification of goals, including knowledge, skills or techniques imparted;
  • An explanation of how goals achieved;
  • A description of the evaluation process;
  • A description of the methods of supervision; and
  • An explanation of how training directly related to STEM degree.

The Plan also imposes obligations on employers intended to protect the terms and conditions of employment for U.S. workers. The following are the attestations on Form I-983:

  • The student’s practical training is directly related to the STEM degree that qualifies the student for the STEM OPT extension and the position offered to the student achieves the objectives of his participation in the training program;
  • The student will receive on-site supervision and training, consistent with the Plan, by experienced and knowledgeable staff;
  • The employer has sufficient resources and personnel to provide the specific training program set forth in the Plan and the employer is prepared to implement it;
  • The STEMP OPT extension student will not replace a full- or part-time, temporary or permanent US worker.
  • The terms and conditions of the STEM practical training opportunity – including duties, hours and compensation – are commensurate with the terms and conditions applicable to the employer’s similarly situated US workers; or if the employer does not employ and has not recently employed more than two similarly situated US workers in the area of employment, the terms and conditions of other similarly situated US workers in the area of employment; and
  • The training conducted pursuant to the Plan complies with all applicable Federal and State employment requirements.

The key aspects of these obligations are that the employer pay the F-1 student wages commensurate with similarly situated US workers and that no self-employment or volunteering is allowed.  Although more restrictive than before regarding the wage equity component of the plan, the new rules does not require the employer to comply with the prevailing wage requirements of the H-1B petition.  However, some employers may find the absence of a bright line rule on wages disconcerting and hopefully USCIS will provide more guidance in the future.

 

New STEM Optional Practical Training Rules

May 17th, 2016

The new STEM (science, technology, engineering, math) OPT (optional practical training) extension is a 24-month period of temporary training that directly relates to an F-1 student’s program of study in an approved STEM field, and replaces the 17-month STEM OPT extension previously available to certain STEM F-1 students. The 17-month STEM OPT regulations remained in effect through May 9, 2016. The 2016 final rule’s STEM OPT 24-month extension has been effective since May 10, 2016.

 

 

Students with Existing 17-Month STEM OPT EADs on May 10, 2016

 

Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked. Also the student’s DSO must continue to abide by all the terms and conditions that were in effect when the EAD was issued.

 

Transition Plan

 

As a transitional measure, from May 10, 2016, through August 8, 2016, certain students with such EADs will have a limited window in which to apply for an additional seven months of OPT, enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional seven-month extension, the student must show the following:

 

  • Have at least 150 calendar days remaining before the end of the student’s 17-month OPT period at the time the Form I-765 employment authorization application is filed, and they must otherwise meet all requirements of the 24-month STEM OPT extension;
  • Properly file a Form I-765 with USCIS, along with applicable fees and supporting documentation, on or before August 8, 2016, (i.e., 90 days after May 10, 2016); and
  • File the I-765 within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record.

 

Whom the Transition Plan Does Not Cover

 

Students whose 17-month STEM OPT extension expired prior to May 10, 2016, or who have fewer than 150 days remaining on their 17-month STEM OPT extension EADs on the date that they are able to properly file their STEM OPT extension are not covered under the transition plan.

 

To become eligible for the 24-month STEM extension, students who are not covered under the transition plan would first need to earn another qualifying STEM degree at a higher educational level.

 

 

Other Terms of the New STEM Extension Rule

 

As under the old rule, the employer must participate in the E-Verify program, a U.S. government internet-based system for verifying employment eligibility, and the field of study must be on a list compiled by Immigration and Customs Enforcement (ICE) and available on ICE’s website. Other important changes in the new rule include:

  • The school that granted the degree must be accredited by an organization included in a U.S. Department of Education database.
  • There is a 24-month extension, instead of the former-17 month extension and the possibility of a second 24-month extension after completing a higher level degree and meeting certain requirements.
  • The 24-month extension may be based on a degree completed within the past 10 years at a U.S. institution in the US that is accredited at the time the extension application is filed and the training must be directly related to the STEM field.
  • Additional fields of study are included in the list of STEM degrees acceptable for extension.
  • A training plan is now required in order to obtain the school official’s recommendation of the OPT extension. The training program imposes obligations on employers intended to protect the employment of US workers.

Furthermore, the new rule creates hurdles for students who are entrepreneurs, since they can no longer be self-employed. The training program must be signed on the employer’s behalf by someone other than the student, and there must be an employer-employee relationship. This resembles USCIS’s policy prohibiting self-employment since 2008 for H-1B visa holders. The employer-employee requirement also bars volunteering. In addition, although USCIS maintains that even “start-ups” can participate, because of the onerous requirements of the training program, it may be difficult for smaller employers to comply.

 

USCIS Announces New Policy on STEM Optional Practical Training (OPT) Extensions for F-1 Students

October 28th, 2013

On October 6, 2013, USCIS announced in a policy memorandum a clarification of its guidelines on eligibility requirements for a 17-month extension of Optional Practical Training (OPT) for F-1 foreign students enrolled in programs in the STEM (science, technology, engineering or math) fields.  It has decided that F-1 students engaged in OPT are eligible for a 17-month STEM extension even if they have not completed the thesis requirement or equivalent for their STEM degree.

The employment authorization afforded F-1 students through OPT is usually their only way to work legally in the US after they have graduated.  They are granted OPT for one year following their graduation so long as they are obtaining practical training that directly relates to their major area of study.  However, F-1 OPT students who completed a course of study in a bachelor’s degree or higher in one of the STEM fields are eligible for a 17-month OPT extension.  During this 17-month extension, F-1 students are eligible for the H-1B cap gap extension of their OPT but are also subject to the unemployment restrictions (allowing students only certain periods of unemployment before losing their F-1 OPT status).

US ICE Announced Expanded List of STEM Degree Programs

May 19th, 2011

US Immigration and Customs Enforcement (ICE) has published an expanded list of science, technology, engineering and math (STEM) degree programs that qualify F-1 Optional Practical Training (OPT) students to extend their OPT for another 17 months. Under the OPT program, foreign graduates may obtain up to one year of post-graduation work authorization in the US for up to 12 months, and if they qualify under the STEM program and their employers participate in E-Verify, then they may apply for an additional 17-month period. This STEM extension was instituted to address shortages of talented foreign students in the STEM fields in the US. The expanded list includes fields such as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design.

Proposal to White House to Extend Student Work Status

March 28th, 2008

According to Computerworld, H-1B visa supporters have asked the Bush administration to extend the time that foreign graduates of U.S. universities can work pursuant to the optional practical training (OPT) of their F-1 student visas from one year to 29 months.  This plan would not increase H-1B numbers but ultimately increase their chances of obtaining an H-1B visa for the following year.

Currently, there are only 85,000 H-1B visa numbers available each year (65,000 for those with a bachelor’s degree and 20,000 for those with a master’s degree from a US institution).  Last year, the bachelor’s cap was reached on the first day that the government allowed the H-1B petition to be filed (April 1st).  It is anticipated that the cap will be reached on the first day this year as well. 

USCIS has announced that it will consider petitions filed within 5 business days of the final receipt date (the day that the cap is reached) to be included within the random selection process for the H-1B cap.  If April 1st is the anticipated receipt date, then this would mean that April 7th would be the last day this year for those seeking an H-1B visa number to file the petition.