- Introduction: New Rules for STEM Optional Practical Training (OPT)
- New Rules: 8 C.F.R. 214.2 and 214.16
- STEM OPT Extension Rules Regarding Eligible Degrees
- Qualifying for a STEM OPT Extension
- Requirements Relating to the Form I-983 or Successor
- STEM OPT Application Process
- Transition Period for Students Under Old Rules
- Conclusion: New Regulatory Scheme for STEM OPT Extensions
On March 11, 2016, the Department of Homeland Security (DHS) published its new final rule regarding STEM OPT extensions for F1 students [see rule: 81 FR 13039]. The new rule also makes alterations to OPT in general and the H1B “cap-gap” protection. The final rule is effective on May 10, 2016. In this article, we will examine the final rule along with the procedural and administrative background that led to it. To learn about the events that led to the new rules and the differences between the final version of the STEM OPT rule and the proposed rule that was published on October 19, 2015, please read this blog about the subject [see blog].
The new rules regarding cap-gap relief and STEM OPT extensions are found in 8 C.F.R. 214.2 (amended) and 8 C.F.R. 214.16 (added). Also of note, sections 8 C.F.R. 214.3, 8 C.F.R. 274a, and 8 C.F.R 274a.12 have been modified to reflect the substantial changes in 8 C.F.R. 214.2 and 214.16. H1B cap-gap relief has been extended intact with minor alterations for clarity in 8 C.F.R. 214.2. It will continue to cover qualified STEM OPT students under the new rules. To learn about the H1B cap-gap relief, please see our full article [see article].
Underpinning the new STEM OPT regulations is 8 C.F.R. 214.2(f)(10)(ii)(A)(1) (note this regulation has not been modified) which requires that any post-completion OPT be “directly related to the student's major area of study.” Furthermore, OPT may not commence “until the date indicated on [the student's] employment authorization document, Form I-766.” 8 C.F.R. 214.2(f)(11)(D)(i) states that a student may not request a start date that is more than 60 days after his or her program's end date. Employment authorization begins on the later between the start date requested and the date the employment authorization is adjudicated.
Duration of status in for post-completion OPT is now defined in 8 C.F.R. 214.2(f)(10)(ii)(C)(11) as follows: “the period beginning on the date that the student's application for OPT was properly filed and pending approval and ending 60 days after the OPT employment expires. 8 C.F.R. 214.2(f)(10(ii)
8 C.F.R. 214.2(f)(10)(ii)(A)(3) allows F1 students to apply for STEM OPT after the completion of a course of study or after the completion of all of the requirements for a bachelor's, master's or doctoral degree program (excluding thesis or equivalent requirement). The regulation notes that continued enrollment “for the school's administrative purposes” does not preclude STEM OPT eligibility so long as the student is otherwise eligible.
8 C.F.R. 214.2(f)(10)(ii)(C) allows for an F1 student with a STEM degree to apply for a 24-month STEM OPT extension while in “a valid period of post-completion OPT.” The 24-month STEM OPT extension is available “for the first qualifying degree for which the student has completed all course requirements.” This includes qualifying degrees as part of dual degree programs so long as the degree meets the requirements in 8 C.F.R. 214.2(f)(10)(ii)(A)(3) (see previous paragraph). If a student who completed a 24-month STEM OPT extension completes the requirements for another qualifying degree at a higher degree level than the first degree, he or she may apply for a second 24-month STEM OPT extension. However, a student may not apply for more than two STEM OPT extensions in his or her lifetime. If a student completed a 17-month STEM OPT extension under the old rules, he or she will only be eligible for one subsequent 24-month extension regardless of whether he or she seeks a 7-month extension under 8 C.F.R. 214.16 [see section].
8 C.F.R. 214.2(f)(10)(ii)(C) sets forth the following requirements for the underlying STEM degree of an F1 student seeking a STEM OPT extension:
- The degree that is the basis for the 24-month STEM OPT extension must be from a U.S. educational institution (not foreign) accredited by an accrediting agency recognized by the Department of Education (DOE) at the time of the application.
- The degree must be a bachelor's, master's, or doctoral degree in a field determined by DOE to be within a STEM field.
8 C.F.R. 214.2(f)(10)(ii)(C)(2)(i) defines a STEM field. STEM programs are designated by the DOE and in general are programs in biology, mathematics, the physical sciences, or related fields. Please see the current list of programs deemed eligible for STEM OPT purposes retrieved on May 5, 2015 [see list].
8 C.F.R. 214.2(f)(10)(ii)(C)(2)(iii) requires that the degree that is the basis for a STEM OPT extension must be contained within the STEM Designated Degree Program List at the time the DSO recommends a STEM OPT extension. This means that the program does not need to have been considered a qualifying STEM program at the time the F1 student was studying so long as it is when the DSO recommends a STEM OPT extension.
8 C.F.R. 214.2(f)(10)(ii)(C)(3) states that the degree upon which an F1 student relies for a STEM OPT extension need not be the degree upon which he or she relied on for an initial OPT period. However, the previously obtained degree must otherwise meet the requirements to qualify for STEM OPT purposes. Furthermore, the previously obtained degree “must have been conferred within the 10 years preceding the date the DSO recommends the student for the 24-month OPT extension.”
8 C.F.R. 214.2(f)(10)(ii)(C)(4) requires that the STEM practical training opportunity “must be directly related to the degree that qualifies the student for such extension.” This also applies to previously obtained degrees..
8 C.F.R. 214.2(f)(10)(ii)(C)(5) requires that an employer seeking to employ a student for a STEM OPT extension is enrolled in E-Verify and remains a participant in good standing with E-Verify. The employer must also have an employer identification number.
8 C.F.R. 214.2(f)(10)(ii)(C)(7)(i) requires that the student complete an individualized Form I-983 or successor form (Training Plan for STEM OPT Students) and obtain signatures from an appropriate individual in the prospective employer's organization before the DSO may recommend a STEM OPT extension [see form instructions]. The student must submit the Form I-983 or successor form completed by an appropriate official in the employer's organization who has signatory authority for the employer to the DSO prior to a new STEM OPT recommendation. The student may also be required to submit the Form I-983 or successor to Immigration and Customs Enforcement (ICE) and/or United States Citizenship and Immigration Services (USCIS) in accordance with the form's instructions.
By signing the form, the employer is obligated under 8 C.F.R. 214.2(f)(10)(ii)(C)(6) to report the termination or departure of the student to the DSO within 5 days of such termination or departure. “Departure” includes any period when the student fails to report for practical training for five consecutive days without the consent of the employer.
8 C.F.R. 214.2(f)(10)(ii)(C)(7)(ii) requires the training plan in the Form I-983 or successor form to identify goals for the STEM practical training opportunity, “including specific knowledge, skills, or techniques that will be imparted to the student,” and explain how the student will achieve the goals through the practical training. Furthermore, the form must describe a performance evaluation process and explain the oversight and supervision of the student. The employer may rely on its own training programs or policies to satisfy these requirements. 8 C.F.R. 214.2(f)(10)(ii)(C)(7)(iii) requires that the training program explain how the training is directly related to the student's STEM degree.
8 C.F.R. 214.2(f)(10)(ii)(C)(10) states that the student may only engage in the practical training attested to by the employer on the Form I-983 or successor form. The employer must attest that:
- i. There are sufficient resources and personnel to at the location of the specified opportunity to provide the student with the appropriate training described on the Form I-983 or successor;
- ii. The STEM OPT student will not replace a full- or part-time temporary or permanent U.S. worker; and
- iii. The training will assist the student in reaching his or her training goals.
8 C.F.R. 214.2(f)(10)(ii)(C)(7)(iv) states that if a student on a STEM OPT extension begins a new practical training opportunity with a new employer, he or she must submit a new Form I-983 or successor form to the DSO and obtain a new recommendation within 10 days of the commencement of the practical training opportunity.
8 C.F.R. 214.2(f)(10)(ii)(C)(8) requires that the terms of the STEM practical training opportunity for a STEM OPT extension are commensurate with terms and conditions for similarly situated U.S. workers in the area of employment. The student must engage in practical training for at least 20 hours per week (excluding time off consistent with the employer's similarly situated U.S. workers in the area of employment). This applies even if the employer has not recently employed more than two similarly situated U.S. workers in said area of employment. The student must disclose compensation agreed to with the employer on the Form I-983 or successor form.
8 C.F.R. 214.2(f)(10)(ii)(C)(9)(ii) requires material changes to or deviations the training plan to be reported on a modified Form I-983 or successor. Such changes may include:
- Change to Employer Identification Number;
- Change in compensation not tied to reduction in hours worked;
- Significant decrease in work hours per week; and
- Any decrease toward hours worked below 20 hours per week.
Any changes that render information on the original Form I-983 or successor inaccurate or obsolete should be reported on a modified Form I-983 or successor. The student and employer must submit the modified Form I-983 or successor “at the earliest available opportunity.”
8 C.F.R. 214.2(f)(10)(ii)(C)(9)(i) requires the student to submit a self-evaluation of his or her progress toward the goals listed on the Form I-983 or successor form. All evaluations must be signed off on by the employer. The student must submit one evaluation within the first 12 months of commencing the STEM OPT and the final evaluation no later than 10 days following the conclusion of the reporting period or the conclusion of the STEM OPT extension.
Under 8 C.F.R. 214.2(f)(10)(ii)(C)(11), DHS may conduct site visits at the site of any employer of post-completion students. DHS will provide the employer with 48 hours of notice unless the visit is triggered by a complaint or other evidence of noncompliance with the post-completion OPT requirements.
8 C.F.R. 214.2(f)(10)(ii)(C)(9)(ii) requires that the DSO must make the information relating to the student's latest STEM OPT extension available to SEVP for at three years following the completion of the program.
8 C.F.R. 214.2(f)(11) states that an F1 student seeking to engage in OPT must request an recommendation for OPT from his or her DSO. If the DSO decides to make the recommendation, he or she will indicate so on a Form I-20. Upon receiving the Form I-20, the student must apply for employment authorization on a Form I-765 or successor form in accordance with 8 C.F.R. 214.2(f)(11)(A).
8 C.F.R. 214.2(f)(11)(C) sets forth the rules for filing for a 24-month STEM OPT extension. An F1 student who is eligible may request an extension of the Form I-765 or successor form (with fee) up to 90 days before the expiration of his or her OPT employment authorization (for an initial 12-month period). The student must properly file his or her Form I-765 or successor within 60 days of the date that the DSO enters his or her recommendation for OPT into the SEVIS record. If the student timely and properly files his or her application for a STEM OPT extension and requests a DSO recommendation by submitting a fully executed Form I-983 or successor, his or her current employment authorization will be automatically extended if it would have otherwise expired per 8 C.F.R. 274a.12(b)(6)(iv).
The DSO must make a determination of whether the F1 student is eligible for a STEM OPT extension under the applicable regulations. Under 8 C.F.R. 214.2(f)(11)(D)(ii)(A), If the DSO finds that the student is eligible, he or she will determine whether a recommendation is warranted and provide the student with a signed and dated Form I-20 if he or she decides to make the recommendation. 8 C.F.R. 214.2(f)(11)(D)(ii)(B) requires that the DSO update the student's SEVIS record before the student can apply to USCIS for employment authorization.
Under 8 C.F.R. 214.2(f)(11)(D)(iii), USCIS will adjudicate the application based upon the Form I-765 or successor, the DSO's recommendation, and “other eligibility considerations.”
8 C.F.R. 214.2(f)(11)(D)(iii)(A) states that if post-completion OPT is approved, employment authorization begins on either the requested date of the commencement of training or the date the Form I-765 is approved, whichever is later. The employment authorization for a 24-month STEM OPT extension begins on the day after the expiration of the initial 12-month OPT employment authorization and ends 24 months later “regardless of the date the actual extension is approved.” If the application is denied, 8 C.F.R. 214.2(f)(11)(D)(iii)(C) states that the applicant may not appeal the denial.
In order to ease the transition from the old regulatory scheme for STEM OPT to the current one, DHS promulgated 8 C.F.R. 214.16.
Under 8 C.F.R. 216.14(a)(1), students who are seeking Employment Authorization related to STEM OPT extensions, who filed prior to May 10, 2016, and whose applications remain pending on May 10, 2016, will be issued Requests for Evidence (RFEs) by USCIS. The RFEs will inform students that they are eligible for a 24-month extension instead of a 17-month extension and will request documentation to establish eligibility that is required under the new regulations. Such students will need to submit a Form I-20 endorsed by their DSO on or after May 10, 2016. 8 C.F.R. 216.14(a)(2) makes explicit that any Forms I-765 that were filed prior to, but remain pending on, May 10, 2016, will be covered under the new regulations.
8 C.F.R. 216.14(b) explains that students who filed and had approved applications for Employment Authorization prior to May 10, 2016, will be employment authorized for 17 months. Any Employment Authorizations that are still valid and were issued before May 10, 2016, will only remain valid for 17-months from the date of their issuance (lest they are terminated or revoked before 17 months). Furthermore, in this situation, “the student, the student's employer, and the student's DSO must continue to abide by all the terms and conditions that were in effect when the Form I-766 was issued.” This means that students who gained employment authorization for STEM OPT prior to May 10, 2016, will continue to be governed by the old regulations that were in effect at the time employment authorization was issued.
Under 8 C.F.R. 216.14(a)(2)(i), a student who was approved for a 17-month STEM OPT extension and whose 17-month period does not expire prior to May 10, 2016, may be eligible for an additional 7-month period. In order to do so, the student must do the following:
- i. Properly file a Form I-765 with USCIS on or after May 10, 2016, and on or before August 8, 2016. The Form I-765 must be filed with fee within 60 days of the date on which the DSO enters the recommendation for the 24-month STEM OPT extension (under current rules) within the student's SEVIS record;
- ii. The student must have at least 150 calendar days remaining prior to the extension of his or her 17-month STEM OPT extension;
- iii. The student must meet all of the requirements under the new regulations for the 24-month STEM OPT extension.
Under 8 C.F.R. 216.14(a)(3), if a student is approved for a 7-month extension, he or she will be considered to be in a period of 24-month STEM OPT extension under the new regulations for the remaining 7 months. Therefore, the student will be subject to the new regulations described in this article. The student will be subject to the 150-day unemployment limit upon approval. If an application for an additional 7 months is denied, the student will be subject to the terms and conditions that were in effect at the time he or she was approved for employment authorization for the duration of the validity 17-month STEM OPT extension.
The new STEM OPT extension rules generally increase the benefits of the program for those who are eligible. Notably, STEM OPT extensions are now for 24 months instead of 17 and students may obtain a second STEM OPT extension upon the completion of a STEM program or degree at a higher degree level than the first. The regulations also make changes to increase oversight of STEM OPT employers and to ensure that the training goals of STEM OPT students are being met.
Employers should consult with an experienced immigration attorney for guidance in navigating the new STEM OPT rules. Students should consult with their DSO's for guidance on the new rules, and should consult with an experienced immigration attorney for guidance on issues such as maintaining F1 status while on STEM OPT or seeking change of status [see article] to a different nonimmigrant visa category.