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Special Alert: UPDATE Final Rule Increasing STEM OPT Released by DHS

March 9, 2016

UPDATE: Final Rule Increasing STEM OPT Released by DHS

As previously reported, the U.S. District Court for the District of Columbia granted the U.S. Department of Homeland Security (DHS) additional time to consider over 50,000 comments on a change to the STEM OPT regulation that was previously struck down due to deficiencies in the rulemaking process. Released today, and expected to be published in the Federal Register on March 11, 2016, DHS has announced the Final Rule titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.”

Effective May 10, 2016, in time to replace the previous rule that would otherwise expire, the Final Rule amends regulations regarding the optional practical training (OPT) available to F-1 nonimmigrant student visa holders. In particular, the amendments at issue will apply to students with degrees in science, technology, engineering, or mathematics (STEM) from an accredited U.S. university and will extend the OPT period to 24 months. The extension period for STEM OPT was previously 17 months. DHS also announced that the amended rule will improve and increase oversight of STEM OPT extensions by implementing training and wage requirements, in addition to other oversight mechanisms such as authorized random site visits. The regulation specifies that the increased STEM OPT extension will only be available to students with degrees from accredited institutions of higher education and that employers of students with STEM OPT extensions must be participants in E-Verify. Under this final rule, STEM OPT students and employers must adhere to four major reporting requirements, and employers must attest that any student hired under the program will not replace a U.S. worker.

Additionally, the Final Rule incorporates “Cap-Gap” relief, which extends a student’s F-1 duration of status and current employment authorization to the beginning of the next fiscal year if the student is a beneficiary of a timely filed H-1B petition and change-of-status request pending with or approved by USCIS. “Cap-Gap” relief was first introduced under a 2008 DHS regulation. The only change to this portion of the regulation is to improve readability.

If you have questions regarding the STEM OPT Program please contact EIG at USVisa@eiglaw.com.