Starting May 10, 2016, a new regulation published last month by
the U.S. Department of Homeland Security (DHS) takes effect which
increases the work authorization extension period from 17 to 24
months for F-1 students holding U.S. degrees in a designated
Science, Technology, Engineering or Math (STEM) field.
The new regulation contains a one-time "transition"
process by which holders of current 17-month STEM extensions can
apply for an additional seven (7) months of work authorization.
Employers with F-1 students currently working pursuant to a
17-month Optional Practical Training (OPT) work permit must plan
accordingly or they will miss this one-time opportunity.
The new 24-month STEM rule imposes additional requirements on
employers that sponsor F-1 students. Employers agreeing to sponsor
F-1 students for the additional 7 months of OPT must agree to these
additional requirements. For example, the rule increases government
oversight over STEM OPT extensions by requiring the implementation
of formal training plans by employers (new government Form I-983),
adding wage and other protections for students and U.S. workers,
and allowing extensions only to students with degrees from
accredited schools. More detailed information about this new rule
can be found here.
Students with Existing 17-Month STEM OPT EADs
F-1 students with an existing 17-month STEM OPT EAD card will
have a limited window from May 10, 2016, to August 8, 2016, in
which to apply for the additional 7 months of OPT under the new
rule. This 7-month extension filing is optional. The U.S.
Citizenship and Immigration Services (USCIS) confirmed that a
17-month STEM OPT EAD that USCIS issued on or before May 9, 2016,
will remain valid until the EAD expires, is terminated or
revoked.
To qualify for the additional 7 months, the F-1 student must have
at least 150 calendar days remaining before the end of their
17-month OPT period as of the date they submit USCIS Form I-765
between May 10, 2016, and August 8, 2016. The F-1 student filing
for the additional 7 months must meet all of the new requirements,
and the employer must abide by all of the terms, for a 24-month
STEM OPT extension under the new rule. This includes, but is not
limited to, completion and submission of Form I-983, the
"Training Plan for STEM OPT Students," to the appropriate
Designated School Official (DSO).
Once approved, the USCIS will issue a 7-month EAD with a validity
period that starts the day after the expiration date in the F-1
student's current 17-month STEM OPT EAD.
Students with 17-Month STEM OPT Applications Pending as of May 10, 2016
The 17-month STEM OPT regulations remain in effect through May
9, 2016. USCIS has confirmed that it will continue to accept and
adjudicate applications for 17-month STEM OPT extensions under the
2008 interim final rule through May 9, 2016.
On May 10, 2016, the USCIS will apply the new requirements of the
24-month STEM OPT extension rule when adjudicating all pending
I-765 applications. USCIS will issue Requests for Evidence (RFEs)
requesting missing documentation to determine whether the F-1
student is eligible for a 24-month STEM OPT. USCIS has confirmed
that Forms I-20 certified by Designated School Officials (DSOs)
dated after the initial submission of the STEM OPT extension
request will be considered valid if the Form I-20 is submitted in
response to a transition period RFE.
The USCIS has confirmed that an F-1 student may elect to withdraw a
pending 17-month STEM OPT extension request and file a new
application for a 24-month STEM OPT extension after May 10,
2016.
Fisher & Phillips has knowledgeable legal professionals with
many years of experience practicing federal immigration law. If you
have questions about this new regulation, immigration sponsorship
or compliance in general, please contact your Fisher & Phillips
legal representative for guidance.
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.