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.


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.


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.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.