Canada: USCIS Increases STEM OPT Extension To 24 Months

On March 11, 2016, USCIS published a Final Rule that will enable certain F-1 students who earned a science, technology, engineering, or technology ("STEM") degree to access up to 24 months (previously 17 months) of additional post-completion Optional Practical Training ("OPT"). As outlined below, in exchange for increasing STEM OPT Extension to 24 months USCIS has placed additional requirements on students, an institution's designated school official ("DSO"), and employers to maintain eligibility for this extension. However, this increase in time should prove quite favorable to F-1 students with STEM degrees and their employers.

Optional Practical Training – A Primer

F-1 students who wish to gain professional experience related to their degree program may receive up-to 12 months of OPT work authorization at each successive educational level (undergraduate, graduate, or post-graduate). An F-1 student may engage in OPT pre or post-completion. Pre-completion OPT is subject to limitations when the employment takes place during the scholastic year (vs. during the summer) and every 2 months of pre-completion OPT will reduce the total available post-completion OPT by 1 month. For example, should an F-1 student engage in 4 months of pre-completion OPT, she will only have access to 10 months of post-completion OPT. As such, although the subject of this article is to discuss the extension to post-completion OPT, it is essential to remember that pre-completion OPT will have an effect on initial grant of post-completion OPT. Moreover, during an initial grant of OPT an F-1 student is permitted to be unemployed for up-to 90 days in this period. For information regarding F-1 OPT generally, please visit the USCIS's Website at: https://www.uscis.gov/eir/visa-guide/f-1-opt-optional-practical-training/understanding-f-1-opt-requirements

STEM OPT Extension – From 17 to 24 Months

Since 2008, F-1 students who earned a STEM Degree were eligible to apply for a 17-month extension of their post-completion Optional Practical Training ("OPT"), bringing their total available OPT time to 29 months. Under the old rule, which will continue to be in effect through May 9, 2016, the F-1 student's employer is required to be enrolled in E-Verify and the F-1 student is permitted to be unemployed for an additional 30 days (120 total while in OPT).

Thanks to USCIS' Final Rule, beginning on May 10, 2016 such F-1 students will be allowed to apply for up-to 24-months of STEM OPT Extension, meaning their total OPT time will increase to 36 months. This extension will be available to F-1 students with STEM degrees engaged in post-completion OPT, F-1 students with pending 17-month STEM OPT Extension Applications, and F-1 students currently in possession of a 17-month OPT Extension. Moreover, students who previously received a 17-month OPT Extension but whose OPT has expired will also be eligible to apply for this Extension. For example, if an F-1 student received an undergraduate degree in a STEM subject, obtained up to the 17- month STEM OPT Extension, and then went on to earn a graduate degree in a non-STEM subject, he or she would still be eligible to access the additional 7 months of STEM OPT Extension now made available through the Final Rule. As is the case with an initial grant of OPT, an F-1 student may access the 24-month STEM OPT Extension at each level of education, and the F-1 student's employer must be enrolled in E-Verify. Moreover, the additional 7 months of OPT means that the F-1 student will be permitted to be unemployed for an additional 30 days of that time, bringing the total amount of permissible unemployment during OPT to 150 days.

With Greater STEM OPT Comes Greater Responsibility and Benefits

However, with this increased amount of STEM OPT Extension available to F-1 students and their employers come additional responsibilities. Those additional requirements include:

  1. STEM OPT Employers must report material changes to the STEM OPT student's employment to the student's DSO within 5 business days;
  2. STEM OPT Employers must implement a formal training program which contributes to the student's education through real-life experience;
  3. STEM OPT student's must receive a job opportunity that is commensurate with those of similarly situated U.S. workers with regards to duties, hours, and compensation. By extension, and unlike the 17-month STEM OPT Extension, a volunteer/unpaid position cannot support the 24-month STEM OPT Extension;
  4. STEM OPT Employers must fill-out and submit Form I-983, Training Plan for STEM OPT Students. In this form, the STEM OPT Employer must attest to the following facts:
  1. The employer possesses sufficient resources and trained personnel that will be made available to appropriately train the student;
  2. The student will not replace a full- or part-time, temporary or permanent U.S. worker;
  3. Working for the employer will assist the student in attaining his/her training objectives; and
  4. That there exists a valid employer-employee relationship. Please note that although the Final Rule does not explicitly prohibit self-employment for students utilizing the STEM OPT Extension, such employment situations must meet all other requirements and students cannot make employer attestations on their own behalf

For more information on the STEM OPT Extension, please visit USCIS'S STEM OPT Hub at: https://studyinthestates.dhs.gov/stem-opt-hub.

Although these additional requirements may create further work to secure a STEM OPT Extension, the extra time made available to F-1 STEM students provides numerous benefits to both F-1 students and their employers. For example, this additional time will give F-1 students with STEM OPT greater flexibility to engage in longer-term research studies and projects. Similarly, extra time in F-1 OPT will afford F-1 student more time to make arrangements for their futures in the United States, including giving such students an additional opportunity to be selected in the H-1B Cap Lottery. Lastly, STEM OPT students will be required to receive a salary that is befitting their specialized skills, which will benefit the F-1 student and ensure he or she is not undermining the U.S. labor market.

Green and Spiegel US, LLC is available to discuss post-graduate options with you, whether you are an F-1 student or an employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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