DHS Proposes New Rules to Expand STEM OPT Extensions and to Address Problems Raised by a Recent Federal Court Decision

11 / 16 / 2015

This update contains information about proposed changes to the STEM OPT extension rules, which will likely take effect February 2016. Please contact your attorney at McCown & Evans with any questions!

On August 12, 2015, a Federal District Court ruled that the existing STEM OPT regulations were issued without sufficient public input and ordered that the regulations be invalidated as of February 12, 2016. The decision has created uncertainty around the validity of the employment authorization of thousands of people currently working with STEM OPT and around the ability of people to continue to seek STEM OPT extensions. In order to cure the procedural errors cited by the court and to address other issues related to the STEM OPT program, the Department of Homeland Security (DHS) has published a new proposed rule which it plans to make effective by February 13, 2016, thus curing deficiencies found by the Federal Court. Proposed regulations are often changed in response to the comments received during the notice and comment period, so the final regulations may differ from what is described below.

The DHS Proposed Rule contains the following provisions:

1. 24-Month STEM OPT Extension Authorized

F-1 students that have been granted 12 months of OPT may extend the OPT period by 24 months. This 24-month STEM OPT would replace the current 17-month STEM OPT extension. DHS is proposing to allow students already on a 17-month extension to take advantage of the 24-month program. These students would be permitted to seek the balance of the modified extension (i.e., up to an additional seven months of STEM OPT) as long as they met all of the requirements of the new STEM OPT extension regulations.
For students who have already filed for a 17-month STEM OPT extension as of the date that the new rules take effect, DHS will decide those cases according to the prior STEM OPT regulations and grant a maximum of 17 additional months. These students can apply for another STEM extension to recapture the balance of the 24 months of possible eligibility. These new extension applications would be subject to the requirements of the new regulations.

2. New Mentoring and Training Program

Students and employers will be required to create a formal customized mentoring and training plan with specific training goals in which the employer agrees to take responsibility for the student’s training and ensure that skill enhancement is the primary goal of the employment. The plan will have to be signed by both the student and the person who will serve as the student’s direct supervisor. The student will be required to submit the mentoring and training plan to his or her Designated Student Adviser before the DSO could authorize the STEM OPT extension through the SEVIS system. DHS expects that this will allow the student’s school to determine whether the training is related to the STEM degree. DHS may require that the mentoring and training plan be submitted along with the STEM OPT extension application filed with USCIS.

3. Oversight of the STEM OPT Training

DHS proposes that students be required to provide their DSO with an evaluation of their STEM OPT training every six months as well provide a final evaluation at the conclusion of the STEM OPT period. The evaluations are intended to document a student’s progress toward the agreed-upon training goals and ensure that the goals are met.

4. Wage and Other Protections for STEM OPT Students and U.S. Workers

Employers seeking to hire a student participating in the STEM OPT extension program will be required to sign a sworn attestation affirming the following:

The employer has sufficient resources and personnel to provide appropriate mentoring and training.
The employer will not lay off U.S. workers as a result of hiring the STEM OPT student.
The employment will assist the student in attaining his or her training goals.
The conditions of the training opportunity — including duties, hours and compensation — are commensurate with those provided to U.S. workers.

5. Allow Students to Seek a Second 24-month STEM OPT Extension After Completion of a Subsequent Degree Even if that Degree is Not in a STEM Subject

Students who have obtained a STEM OPT extension may seek one additional 24-month STEM OPT extension after completion of a subsequent degree from an accredited university. Also, the subsequent degree need not be in a STEM subject as long as the student has previously completed a U.S. degree in a STEM subject.

6. DHS Proposes to allow STEM OPT Extensions Only to Students with Degrees from Accredited Schools

The current regulations do not require that students attend a university accredited by an organization recognized by the Department of Education.

7. The Proposed Rule Will Preserve Certain Rules Existing Under Current Regulations

Students will continue to be allowed a 90-day maximum period of unemployment during the initial period of post-completion OPT, but the proposed rule allows an additional 60 days (for an aggregate of 150 days) for students who obtain a 24-month STEM OPT extension. The current regulation allows an additional 30 days, for an aggregate of 120 days.
The proposed rule will continue to limit STEM OPT extensions only for students employed by employers enrolled in the U.S. Citizenship and Immigration Services’ E-Verify employment eligibility verification program.
The proposed rule retains “cap-gap” employment authorization, which extends the employment authorization of an F-1 student with a timely filed H-1B petition and request for change of status. Cap-Gap relief permits such students to automatically extend the duration of status and any current employment authorization until October 1st of the fiscal year for which the H-1B visa is being requested.

While the proposed rule will require employers to take the additional step of creating a “mentoring and training plan,” the additional STEM OPT period that DHS is proposing will effectively provide employers with three chances at obtaining an H-1B for recent graduates through the H-1B cap lottery. The lead time required to prepare and file a STEM OPT extension application will increase somewhat under the proposed regulations so employers will need to begin the process early.

McCown & Evans will continue to monitor the progress of the proposed regulations and will provide updates as they become available.

Disclaimer

This information is for general use only. You should consult a licensed attorney for legal analysis and advice regarding the specific details of your case.