United States: Recent Developments in Business Immigration Law, Including Implementation of Revised STEM OPT Program

Premium Processing of FY 2017 H-1B Cap Petitions to Begin No Later Than May 16

U.S. Citizenship and Immigration Services (USCIS) has announced that Premium Processing of fiscal year 2017 H-1B cap cases will be postponed until no later than May 16. USCIS stated it is delaying the start of the 15-day Premium Processing clock so that it can focus on initial intake, data entry and receipting of the large number of petitions it expects to receive this cap filing season. USCIS's announcement means that employers that requested 15-day Premium Processing service for their H-1B cap cases filed on April 1, 2016, may not see action taken on their cases (approval, denial or issuance of a request for evidence) before Tuesday, May 31, 2016.

Revised STEM OPT Program to Take Effect on May 10

As you are likely aware, F-1 students granted 12 months of Optional Practical Training (OPT) following graduation whose underlying degrees are in the field of science, technology, engineering or mathematics (STEM) may currently be eligible for an additional period of 17 months of OPT. Recently, the Department of Homeland Security (DHS) announced that a significantly revised and broadened STEM OPT program will take effect on May 10. Under the new rule, more F-1 STEM students will be eligible for an extension of their OPT, and those who qualify will be granted a longer period of employment authorization. However, their employers will be subject to stringent new requirements, including the obligation to prepare a detailed training plan for each STEM OPT candidate, comply with more extensive reporting requirements and undergo worksite inspections conducted by U.S. Immigration and Customs Enforcement (ICE). These requirements apply only to extensions of OPT for F-1 students with a qualifying U.S. science, technology, engineering or math degree; the standard 12-month OPT program is unchanged. As under the prior rule, employers must be enrolled in e-Verify to employ an F-1 student in STEM OPT. (Please contact us if you have any questions or wish to learn more about e-Verify.) A summary of the key points of the revised STEM OPT program is below.

ELIGIBILITY FOR A STEM OPT EXTENSION

Under current rules, a 17-month extension of OPT is available to F-1 students who have earned a qualifying U.S. degree in a designated STEM field. The new regulation will broaden the eligibility criteria for a STEM extension of OPT and lengthen the duration of STEM employment authorization, as follows: 

  • A more extensive list of U.S. STEM degrees and related degrees will qualify F-1 students for a STEM OPT extension. DHS is expected to publish the expanded list of STEM-designated degrees in the coming days. As under prior rules, the F-1 student's degree must be directly related to the STEM OPT job. 
  • The STEM extension of OPT will be 24 months in duration (rather than 17 months), meaning that qualifying F-1 students will be eligible for a total of 36 months of OPT employment authorization, including the initial 12-month OPT period. (Students who were granted a 17-month STEM OPT extension under earlier rules can seek a further seven months of work authorization, subject to the requirements of the new rules, discussed below.) 
  • F-1 students with a previously obtained STEM degree can qualify for the OPT extension as long as the student's prior degree is directly related to the position. For example, an F-1 student whose most recent U.S. degree was a Master of Business Administration could qualify for a STEM OPT extension on the basis of her prior U.S. bachelor's degree in mathematics. The earlier degree must have been conferred within 10 years before the application for the STEM extension, and have been issued by an accredited U.S. school that is certified by the Student and Exchange Visitor Program at the time of the application. This is a significant change, as under the prior rule a STEM extension was available only to those whose most recent U.S. degree was in a qualifying STEM field.

REVISED EMPLOYER OBLIGATIONS

Employers must meet significant new obligations in order to employ an F-1 student during the STEM OPT period: 

  • Before an application for a STEM OPT employment authorization document (EAD) can be filed, the employer and the F-1 student must prepare and sign a formal training plan and submit it to the student's designated school official (DSO). (DHS is expected to issue a new Form I-983, the Training Plan for STEM OPT Students, once the new regulation is published in May.) The plan must satisfy a number of stringent criteria, including detailing the specific goals for the STEM OPT period and how they will be achieved; detailing the specific knowledge, skills or techniques the employer will impart to the student; explaining how the training is directly related to the student's STEM degree; and describing how the student will be supervised and evaluated. (The training plan does not need to be submitted with the USCIS employment authorization application, but USCIS has the authority to request for a copy of the plan.) 
  • Employers must certify in the training plan that the terms and conditions of the STEM OPT employment — including compensation — are commensurate with those provided to similarly situated U.S. workers. Additionally, the employer must certify that the STEM OPT student will not "replace" a full- or part-time, temporary or permanent U.S. worker. Furthermore, employers and students are obligated to notify the DSO "at the earliest available opportunity" if there are material changes to or deviations from the training plan (such as a significant decrease in work hours or a change in the employer's EIN due to corporate restructuring). 
  • The employer and the F-1 student must complete a performance evaluation after the first 12 months of STEM OPT, and complete another evaluation at the conclusion of the STEM program. Evaluations must be signed by the student and employer, and the student must submit the evaluation to the DSO within 10 days after the conclusion of the review period.

The new regulation also gives ICE the authority to conduct on-site reviews to verify whether employers are adhering to their training plans and otherwise complying with STEM OPT program requirements. The agency will give employers 48 hours' notice of a site visit, unless the visit is triggered by a complaint or other evidence of noncompliance. Finally, note that the new rule allows STEM OPT students a maximum of 150 days of unemployment during their entire post-completion OPT period – 90 days for the initial 12-month grant and an additional 60 days once granted a STEM extension.

USCIS will begin to accept applications for a STEM extension of work authorization under the new rule on May 10, 2016. STEM OPTs issued under the former regulation remain valid, but all requests filed on or after May 10, or requests that remain pending with USCIS as of May 10, are subject to the new rules. (Furthermore, an F-1 student who is in a period of 17-month STEM OPT authorized under the prior regulation can file for a seven-month extension under the new rules between May 10, 2016, and August 8, 2016, provided the student has at least 150 days remaining on his or her EAD at the time of filing.) As these are significant changes, please carefully review the revised employer obligations in advance of May 10 if you intend to hire any recent graduates under the STEM OPT program. Please feel free to contact us if you have any questions about this or any other STEM OPT-related issue.

USCIS Provides Extension of Work Authorization to H-1B1s and E-3s with Timely Filed Application to Extend a Stay

USCIS has long provided an automatic, 240-day period of extended employment authorization to nonimmigrants in H-1B, L-1 and O-1 status whose current employers have timely filed extension of stay petitions on their behalf. As of February 14, 2016, USCIS now provides this same extended work authorization benefit to Chilean and Singaporean H-1B1 and Australian E-3 nonimmigrants who are being sponsored for an extension of their stay. The new rule gives eligible H-1B1s and E-3s an additional 240 days of work authorization beyond the expiration date of their Form I-94 arrival record, as long as a timely petition to extend status has been filed by the employer that sponsored the most recent period of stay. The automatic 240-day period of authorized employment applies only to extensions of employment with the same employer, and does not include requests for changes of 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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Green and Spiegel LLP
Kramer Levin Naftalis & Frankel LLP
Ogletree, Deakins, Nash, Smoak & Stewart
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Green and Spiegel LLP
Kramer Levin Naftalis & Frankel LLP
Ogletree, Deakins, Nash, Smoak & Stewart
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions