You may have heard in the news about challenges to the STEM OPT program. OPT is Optional Practical Training. It is a way for F-1 students to work in the US to gain experience for one year after their graduation from a US university. “STEM” stands for science, technology, math and engineering. If you are a graduate in one of these fields, you can currently apply for a 17-month OPT extension to work in your field for an e-Verify employer at the end of your 1-year OPT.
Recently, the STEM OPT extension came under attack by a lawsuit in the U.S. District Court for the District of Columbia, called Washington Alliance of Tech. Workers vs. Department of Homeland Security. Judge Ellen Huvelle ordered that the STEM OPT program be vacated, but allowed a six-month stay. She held that DHS promulgated the rule for the original STEM OPT program without proper notice and comment, rendering it invalid. Because so many students are currently on STEM OPT in the US, the court stayed the vacatur until February 12, 2016. This means that STEM OPT is still in effect, and DHS has until this date to promulgate rules properly for a new program. DHS is currently seeking comments for the proposed rules for the new STEM OPT program.
On October 19, DHS proposed an expansion of OPT for STEM graduates. The most major change is that the length of STEM OPT would increase from 17 months to 24 months under the rule, for a total OPT period of 36 months.
There will be several other changes as will, and I will discuss many of them here. First, there will be a new list of qualifying STEM degrees based on a Department of Education definition of STEM.
Another change is that more than one extension will be allowed if the student obtains more than one STEM degree. F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level will be eligible for one additional 24-month STEM OPT extension.
Also, students who are participating in post-completion OPT can use a prior eligible STEM degree as a basis to apply for a STEM OPT extension. Here is an example: A student graduated with a Bachelor’s of Science in Electrical Engineering. The student had regular OPT for one year and then went back for an MBA. The student is now at the end of the 1-year OPT for the MBA. Under the proposed rule, the student could now get a STEM OPT period for 2 years if she has a job related to electrical engineering.
There will be new requirements for STEM OPT employers. Not only will they continue to need to use e-Verify but there will also be a new Form, I-901, on which the employer will report a mentoring and training program for the student. The employer will need to attest to the job duties, hours, and compensation. The students will have to submit a detailed report of their progress to their DSOs every six months. There may also be site visits by ICE to ensure compliance.
The Cap Gap program will continue to exist. That is, DHS will temporarily extend the student’s duration of status while waiting for an October 1st H-1B start date.
For individuals currently on the 17-month STEM extension, they would be able to file a new application to get the additional seven months under the new rules. This would probably involve applying to renew the Employment Authorization Document and paying the fee of $380 again.
DHS is seeking input about these proposed regulations. It is due by November 18. Your voice is needed so that these changes can take place. You can learn about how to take action from FWD.us here.
After the comment period closes, there will be 30 days for DHS to review the comments and publish the final rule in the Federal Register. Then, they may have to wait 60 days for the rule to go into effect because it could be considered “significant.” We’ll keep watch for whether new rule gets promulgated before the Judge’s February 12, 2016 deadline and what will happen to the status of current STEM OPT individuals.
