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.