Mar 15, 2016

Last Friday, the U.S. Department of Homeland Security (DHS) published its final regulations on STEM Optional Practical Training (OPT) Employment Authorization (EAD) Extension.   The new regulations will go into effect on May 10, 2016 and allow certain foreign students with degrees in Science, Technology, Engineering, and Mathematics (STEM) from U.S. institutions of higher education to extend their STEM OPT employment authorization period from 17 months to 24 months.   The 17-month STEM OPT EADs issued by USCIS on or before May  9, 2016, will continue to be valid until the document expires, is terminated or revoked.   Qualifying students who are applying for their first STEM OPT will be eligible for EADs valid for 24 months.

Certain students who are currently in the U.S. under their 17-month STEM OPT extension will be able to apply for an extension of their STEM OPT EAD for an additional 7 months.   To qualify for the 7 month extension, students must have at least 150 calendar days remaining before the end of their 17-month STEM OPT EAD period at the time they file their applications for extension of employment authorization (Form I-765) and must meet all the requirements of the 24-month STEM OPT EAD extension.   Applications for the 7-month extension must be submitted on or before August 8, 2016, and within 60 days of the date the Designated School Official enters a recommendation for the 24-month STEM OPT extension into the student’s SEVIS record.  

The regulations authorize STEM OPT EAD extensions only for students with STEM degrees from schools accredited by an accrediting agency recognized by the U.S. Department of Education and whose employers are enrolled and in good stating with the USCIS E-Verify Employment Eligibility Verification Program.   The rules also include a “Cap-Gap” relief for students with a timely submitted H-1B visa petition and request for change of status.   The “Cap-Gap” relief will allow eligible students to automatically extend the duration of their F-1 visa status and any current employment authorization document until October 1st of the fiscal year for which the H-1B visa petition is being sought, or until the student’s H-2B case is rejected, if not selected in the lottery.

In addition, the new regulations contain additional oversight provisions regarding the STEM OPT extensions requiring the implementation of formal mentoring and training plans by employers and by adding employer attestation and reporting requirements intended to protect OPT students and U.S. workers.   The new regulations require employers to attest that (1) they have sufficient resources and trained personnel available to provide appropriate training in connection with the specified STEM practical training opportunity, (2) the student will not replace a full or part-time U.S. worker and that the terms and conditions of the STEM practical training opportunity (duties, hours and compensation) are commensurate with the terms and conditions applicable to similarly situated U.S. workers, and (3) the STEM practical training opportunity will help the student attain his or her training objectives.  

Also last Friday, the Student and Exchange Visitor Program (SEVP) launched its STEMP OPT Hub to assist employers, school officials and students learn and understand the new regulations.   The STEM OPT Hub provides helpful information and resources concerning the new rules, transition plan and training plan issues.   You may find the SEVP STEM OPT Hub at