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STEM OPT Extension Changes Take Effect May 10, 2016

New STEM OPT Program Increases Validity to 36 Months

The new and expanded STEM OPT Extension program, announced by USCIS on March 11, 2016, goes into effect on May 10, 2016. The program increases the length of time that STEM graduates can stay in the U.S., working lawfully under the Optional Practical Training (OPT) program. The new rule expands the length of the STEM OPT program from 17 to 24 months, increases the total number of days that the student can be unemployed to 150 days and introduces several new requirements for employers and employees, described below.

Depending on where the student is in their OPT / STEM OPT progress, the new STEM Extension rules will impact them in one of the following three ways.

OPT Extension Chart Under the New Rule:

Nature of OPT Applicant Eligibility requirement When to file Additional Notes
Students Currently within a 17-month STEM Extension Period Only eligible for the additional 7 months if at least 150 days of time on current OPT remains The new I-765 OPT EAD filing must be submitted to USCIS between May 10 and August 8th Students who are ineligible for or fail to seek the 7 month extension will simply continue in their current STEM OPT period.
Students Who Have Filed for a STEM Extension and it is currently pending on May 10, 2016 These students will come under the new rule. USCIS will most likely issue an RFE related to the new requirements When the RFE is received In responding to the RFE, the applicant requests the full 24-month period with the need for a new I-765 and filing fee submission.
Students Currently in their 12-months Post-completion OPT Period Applicants are eligible to file. Which program the student comes under depends on the date of expiration of the current OPT. For applicants whose OPT expires after May 10th, they should file by June 1st under either the previous 17-month program or the new 24-month rule If the 12-month Post-completion OPT period expires after June 1st, the STEM Extension can only be filed under the new rule (24 months).

 

Bear in mind that Department of Homeland Security Officials have cautioned that “wrinkles” in the implementation of the new program are still being worked out and that the SEVIS system is still being updated to handle the new changes.

STEM OPT Extension Requirements for the Employer

To ensure the integrity of the program, the new rule places several additional obligations on employers. Employers and their Immigration Attorneys should be aware of the following requirements to ensure compliance. In order to employ a STEM OPT graduate under the program taking effect May 10, 2016, the employer must:

  • Prepare a Training Plan (further discussion below) related to the student’s employment. While the Training Plan does not need to be submitted to USCIS directly, it does need to be submitted to the Designated School Officer (DSO) of the academic institution issuing the student’s I-20;
  • Be registered with the E-verify program, as in the previous iteration of the STEM Extension program;
  • Pay the graduate a wage comparable to that paid to U.S. workers in a similar position and with similar expertise;
  • Provide the employment position for at least 20 hours per week;
  • Provide the employment position in a position that is directly related to the student’s degree;
  • Report to the I-20-issuing school any important changes in the employment (including changes in hours, pay, job site, supervisor, or to the company’s corporate structure);
  • Inform the I-20-issuing school if the STEM OPT graduate resigns or is fired within 5 business days.
  • Comply with site visits. At its discretion, immigration officers may conduct announced or unannounced visits to the jobsite to verify whether the terms of the training plan and the OPT rule are being complied with.

What is the Form I-983 Training Plan for OPT Students?

The I-983 Training Plan summarizes the employment relationship and the nature of the position. It is comprised of the following four sets of information: 1) description of the student’s position and tasks; 2) description of the goals and objectives of the training; 3) describes how the supervisor will oversee the student and any existing training programs; 4) describe how the student’s progress will be measured and their performance evaluated.

Moreover, in signing the I-983 Training Plan Form, the employer affirms that: 1) it will comply with all applicable federal and state labor regulations; 2) the OPT graduate is not replacing a US worker; 3) employment conditions will be comparable to similarly situated US workers within the company; 4) the employment is related to the student’s degree; 5) supervision and training will be provided by experienced management; and that 6) the employer has the sufficient personnel and resources to provide the training offered.

STEM OPT Program Extension – a Welcome Fix, but not a Permanent Solution

The new rule provides a boon to international students in stem fields, increasing their OPT period to 36 months. Moreover, the program helps employers address the H-1B availability shortfall by continuing to lawfully employ highly qualified graduates. At the same time, the program is also highly technical, requiring that students and employers undergo additional steps to stay in compliance. Qualified immigration counsel should be sought to evaluate the new STEM OPT program’s applicability in a given situation.

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