A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, October 20, 2015

New STEM OPT Regulation Allows 24 Months Employment

The Department of Homeland Security (DHS) proposes to amend the regulation for certain foreign students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. The proposal will extend the existing STEM OPT employment period from 17 months to 24 months.  

In addition to respond to a federal court decision that vacated the 2008 STEM OPT regulation on procedural grounds, DHS states that the proposed changes will contain procedural oversights to improve the integrity and value of the STEM OPT program.  Public comments on the new rule will be accepted through November 18, 2015.  

The proposed rule includes the following major changes:

Longer STEM Extension Period for OPT. The proposal would increase the OPT extension period for STEM OPT students from 17 months to 24 months. 

New STEM OPT Employment Period for Each Qualified Academic Program.  The proposal would allow multiple STEM OPT employment periods.  In other words, each time a student graduates from a STEM academic program, he or she would be eligible for one additional 24-month STEM OPT extension.

Better Defined STEM Degree Program. The proposed rule would better define the academic programs that may serve as the basis for a STEM OPT extension. The public will be notified of any changes and updates in the Federal Register and also on the Student and Exchange Visitor Program’s (SEVP’s) website.
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Mentoring and Training Plan. The proposal would require employers to implement formal mentoring and training programs to supplement students’ academic learning through practical experience, 

Past STEM Degrees also Eligible. The proposal would allow students to use a prior eligible STEM degree as a basis to apply for a STEM OPT extension, as long as the student’s most recent degree was also received from an accredited educational institution. Additionally, the employment opportunity must be directly related to the previously obtained STEM degree.

Protection for U.S. Workers in Related Fields.  The new rule would require terms and conditions of a STEM employment opportunity (including duties, hours, and compensation) to be comparable to those of similarly situated U.S. workers. In addition to the mentoring and training plan mentioned above, an employer would be required to attest that: (1) the employer has sufficient resources and trained personnel available to provide appropriate mentoring and training in connection with the specified opportunity; (2) the employer will not terminate, lay off, or furlough any full- or part-time, temporary or permanent U.S. workers as a result of providing the STEM OPT to the student; and (3) the student’s opportunity assists the student in attaining his or her training objectives.

Longer Period of Unemployment. The current program allows a student to be unemployed up to 90 days during his or her initial period of post-completion OPT, and up to an additional 30 days (for an aggregate of 120 days) if the student receives a 17-month STEM OPT extension. The proposed rule would retain the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allow an additional 60 days (for an aggregate of 150 days) for students who obtain a 24-month STEM OPT extension.

That following existing requirements would remain the same: 

E-Verify and Reporting Requirements for Employers. The proposal would continue to require STEM OPT employers to be enrolled in USCIS’ E-Verify program and to report certain changes in the STEM OPT student’s employment.

Reporting Requirements for STEM OPT Students. The proposal would require STEM OPT students to report to DHS any changes to their names or addresses, as well as any changes to their employers’ names or addresses. Students would also be required to periodically verify the accuracy of this reporting information.

Cap-Gap Extension for F-1 Students with Timely Filed H-1B Petitions and Requests for Change of Status. The proposal retains the existing "Cap-Gap” extension provision, under which DHS would temporarily extend an F-1 student’s duration of status and any current employment authorization if the student is the beneficiary of a timely filed H-1B petition and requests a change of status. The Cap-Gap extension would extend the OPT period until October 1 of the fiscal year for which the H-1B visa is being requested.

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