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.)

Saturday, April 23, 2016

From 17-Month to 24-Month STEM OPT - Transition Begins May 10th

The new 24-month STEM OPT is almost here.  Starting May 10th, 2016, foreign students may start applying for the newer and longer STEM OPT.  The new STEM OPT extension is a 24-month period of practical training that directly relates to an F-1 student’s program of study in an approved STEM field.  It replaces the 17-month STEM OPT extension previously available to students in the United States.  

What If I Am on the Current 17-Month STEM OPT
The 17-month STEM OPT regulations will remain effective until May 9, 2016.  Any EAD applications filed on or before May 9, 2016 will be adjudicated according to the old regulations. If you are currently working based on a 17-month STEM OPT EAD, you may continue to work under the terms and conditions of the 17-month STEM OPT program until the end of the term or until it is terminated or cancelled.  You may also choose to convert your EAD to the 24-month OPT program if you are eligible.  (See below).  

Transition from 17-Month to 24-Month STEM OPT
During the transitional period through and beyond May 10, 2016, foreign students may or may not be eligible to apply for the new 24-month STEM OPT, depending on various factors.  For those who are eligible, there are some strict timelines and requirements that they must follow in order to take advantage of the new rule. 

Foreign Students Who May Apply for 24-Month STEM OPT
There are two (2) categories of students during the transitional period who may benefit from the new 24-month STEM OPT.  (1) Students with 17-month STEM OPT applications pending on May 10, 2016 before USCIS. (2) Students with existing 17-month STEM OPT EADs on May 10, 2016.

Foreign Students Who Are Not Eligible for 24-Month STEM OPT
If your 17-month STEM OPT extension has expired or will expire before May 10, 2016, then you will not be able to benefit from the longer STEM OPT.  Similarly, if you have less than 150 days remaining on your 17-month STEM OPT validity period on the date when you become eligible to properly file your STEM OPT extension, you are also not covered under the transitional plan. These two groups of ineligible students may become eligible for the 24-month STEM OPT based on another STEM degree.  

Students Who Will Enter the 60-Day Grace Period before May 10, 2016
If your current regular 12-month OPT will expire before May 10, 2016, you should not wait until May 10, 2016 to file your STEM OPT.  Under the regulations, a student must still be in a valid OPT employment period in order to be eligible for STEM OPT. Hence, you must apply for OPT extension prior to entering the 60-day grace period, even if it means that you may only apply for the 17-month STEM OPT now.

Students with Pending 17-Month STEM OPT Applications on May 10, 2016
If you have a pending 17-month STEM OPT I-765 application before the USCIS, you will receive a formal RFE (request for evidence) from USCIS.  The RFE will request additional documents that will establish that you are eligible for a 24-month OPT extension under the new rule.  These documents include a new Form I-20 endorsed on or after May 10, 2016, indicating that the Designated School Official (DSO) recommends the student for a 24-month OPT extension, a  Form I-983 Mentoring and Training Plan, and other documentation to establish that you meet the requirements for a 24-month STEM OPT extension.  You must respond to the RFE in a timely manner.

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Students with Approved 17-Month STEM OPT before May 10, 2016
As discussed above, students who have already been approved for a 17-month STEM OPT have two options.  First, they may choose to stay on their current 17-month STEM OPT period until the end without applying for an extension.   Second, they may affirmatively request for a 7-month extension with USCIS, provided that they meet all the other requirements.  These requirements include:

(1) Properly filing a Form I-765 with USCIS between May 10, 2016 and August 8, 2016, (2) Filing must be within 60 days of the date the DSO enters the recommendation for the 24-month OPT extension into the student’s SEVIS record, (3)  Submitting a new Form I-20 endorsed on or after May 10, 2016, indicating that the DSO recommends the student for a 24-month OPT extension, (4) Submitting a completed and signed Form I-983 Mentoring and Training Plan, (4) Having at least 150 days of employment period remaining on the date the I-765 is properly filed, and (5) Submitting the required filing fees plus any other supporting documentation to establish eligibility for a STEM OPT extension under the standards of the new final rule.   (Note: Students applying for the 7-month extension do not have to be in a valid period of standard 12-month post-completion OPT at the time of filing.)

Should I File for STEM OPT Extension Now or After May 10, 2016
Certain F-1 students with their current OPT expiring after May 10, 2016 have to choose between filing now under the existing 17-month STEM OPT program or filing on or after May 10, 2016 under the new rule.  If they file after May 10, 2016, they will be able to apply for the 24-month STEM OPT directly without worrying about conversion later on.  Filing now, on the other hand, will allow them to "avoid the crowd" as most students will likely file after May 10, 2016.  

Some Final Pointers
  • Remember, you may only file for the 7-month OPT extension between May 10, 2016 and August 8, 2016.  You must also have 150 days of OPT remaining at the time of filing.
  • If your current OPT expires before October 6, 2016, then you are not eligible for extension.
  • Similarly, if your current OPT expires after October 6, 2016  but before January 5, 2017, you should make sure you file your extension request before the remaining 150 days runs out.
  • Under the new rule, students may only file for STEM OPT extension 90 days before their current OPT expiration. 
  • ICE will not be able to update the SEVIS system for the new STEM OPT until May 13, 2016. Therefore, students should take that into consideration when preparing for their filing.  Some students may have to file their STEM OPT application without the requisite I-20 endorsement in order to meet the 150-day requirement.  
  • Timing is critical: Because of various time restrictions and documentary requirements (E.g, I-983 training plan).  It is very important that foreign students should plan things ahead and touch basis with their DSOs and employers as early as possible.  Don't hesitate to seek professional assistance from immigration attorneys if necessary.  

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