Important Information for Employers and Students on Implementation of the New 24-Month STEM OPT Regulation

Beginning May 10, 2016, USCIS will adjudicate all STEM OPT applications under the standards of the new final rule. The final rule lengthens the STEM OPT extension from the current 17 months to 24 months. Additionally, the final rule includes the following enhancements and protections:

• Transition from 17-Month to 24-Month STEM EAD. The final rule states that students who currently possess a 17-month STEM EAD card can apply for the additional 7 months in certain circumstances. The I-765 application must be filed between May 10, 2016, and August 8, 2016, and the F-1 student’s current 17-month STEM EAD card must have at least 150 calendar days of validity remaining as of the date their I-765 is filed.

• Participating students who receive an additional qualifying degree from an accredited college or university can apply for a second STEM OPT extension.

• Participating students can use a previously-earned qualifying degree to apply for a STEM OPT extension. The prior degree cannot have already been used as the basis of a STEM OPT extension. The student’s most recent degree must also be from an accredited and SEVP-certified institution.

• Employers participating in STEM OPT must incorporate a formal training program that includes concrete learning objectives with proper oversight. A formalized Mentoring and Training Plan and Form I-983 from the employer must be submitted to the student’s DSO before the STEM extension can be recommended in SEVIS to obtain the new I-20.  The student will also need to provide his or her DSO with an evaluation of his or her STEM OPT every six month. Any changes must be updated in the Form I-983 and Mentoring and Training Plan within 10 days.

• Employers and students must report material changes in their training program within 10 days, including any loss of employment.

• To guard against adverse effects on U.S. workers, terms and conditions of a student’s training opportunity – such as duties, hours, and compensation – must be on par with U.S. workers in similar positions in the same geographic area of employment. Additionally, the student must not replace a full-time, part-time, temporary or permanent U.S. worker.

• Students must work a minimum of 20 hours per week per employer to qualify for STEM OPT.

• The final rule retains the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allows an additional 60 days (for an aggregate of 150 days) for students who obtain a 24-month STEM OPT extension.

• The final rule retains the current rule’s requirement that STEM OPT employers must still participate in DHS’ E-Verify program.

Information for Students During this Interim Period:

• USCIS will send an RFE (request for evidence) to any applicant who filed for a 17-month STEM OPT extension under the current rule and whose application is still pending as of May 10, 2016. The RFE will “request documentation that will establish that the student is eligible for a 24-month OPT extension” under the new final rule.

• Students who have a 17-month EAD that was approved before May 10, 2016 under the current 17-month rule will not  have their 17 months automatically extended to 24 months. A student whose 17-month STEM OPT was approved before May 10, 2016 can continue on their 17 month STEM OPT without change or request the remaining 7 months by proving they meet all requirements for the 24 month STEM OPT (this includes filing a new I-765 and having at least 150 calendar days remaining prior to the end of the 17 month OPT extension when filing the request).

Please contact us with questions.

Marsha Mavunkel, Amy Royalty, Joel Paget and Janet Cheetham are attorneys in Ryan, Swanson & Cleveland, PLLC’s Immigration Group.

Marsha can be reached at 206.654.2253 or [email protected]. Amy can be reached at 206-654-2260 or [email protected]. Joel can be reached at 206.654.2215 or [email protected]. Janet can be reached at 206.654.2235 or [email protected].