Revised STEM OPT Program Will Take Effect May 10

March 9, 2016

 

A significantly revised and broadened STEM optional practical training (OPT) program will take effect on May 10 under a final regulation slated to be published in the Federal Register on Friday. An advance copy of the rule was made available today.

Under the new rule, more F-1 STEM students will be eligible for an extension of their OPT and those who qualify will be granted a longer period of employment authorization. But their employers will be subject to stringent new requirements, including the obligation to prepare a detailed training plan for each STEM OPT candidate, comply with more extensive reporting requirements and undergo worksite inspections conducted by U.S. Immigration and Customs Enforcement (ICE). These requirements apply only to extensions of OPT for F-1 students with a qualifying U.S. science, technology, engineering or math degree; the standard 12-month OPT program is unchanged.

The new regulation permits the program to continue without interruption following a federal court decision holding that current STEM OPT rules did not meet procedural requirements. The court stayed its decision to invalidate the current program and granted the Department of Homeland Security additional time to promulgate replacement rules. The lawsuit challenging the STEM OPT program is ongoing. The existing STEM OPT regulation will remain in place until May 9.

A summary of the key points of the revised STEM OPT program is below. Fragomen will follow this summary with detailed guidance on the impact of the new rules on employers and F-1 students.


ELIGIBILITY FOR A STEM EXTENSION OF OPT


Under current rules, a 17-month extension of OPT is available to F-1 students who have earned a qualifying U.S. degree in a designated STEM field. The new regulation will broaden the eligibility criteria for a STEM extension of OPT and lengthen the duration of STEM employment authorization, as follows:

  • A more extensive list of U.S. STEM and related degrees will qualify F-1 students for an OPT extension. DHS is expected to publish the expanded list of STEM-designated degrees in the coming days. As under prior rules, the F-1 student's degree must be directly related to the STEM OPT job. The student must have completed all degree requirements to be eligible for a STEM extension, with the exception of any thesis or comparable requirement.

  • The STEM extension of OPT will be 24 months in duration. Qualifying F-1 students will thus be eligible for a total of 36 months of OPT employment authorization, including the initial 12-month OPT period.

  • Students who were granted a 17-month STEM OPT extension under earlier rules can seek a further seven months of work authorization subject to the requirements and obligations of the new rules, as discussed below.

  • F-1 students who earn an additional qualifying STEM degree at a higher education level can apply for a second 24 months of OPT, but this period cannot immediately follow the first STEM OPT extension. There must be an intervening degree and a period of 12-month OPT before the foreign national can obtain a second period of STEM OPT. No student can obtain more than two periods of STEM OPT.

  • F-1 students with a previously obtained STEM degree can qualify for the OPT extension as long asthe prior degree is directly related to the position. For example, an F-1 student whose most recentU.S. degree was an MBA could qualify for a STEM OPT extension on the basis of her U.S. bachelor's degree in chemistry. The earlier degree must have been conferred within 10 years before the application for the OPT extension and have been issued by a U.S. school that is duly accredited and is certified by the Student and Exchange Visitor Program at the time of the application. Under previous rules, an OPT extension was available only to those whose most recent U.S. degree was in a qualifying STEM field.

 

NEW EMPLOYER OBLIGATIONS


Employers must meet significant new obligations in order to employ an F-1 student during the STEM OPT period.

     Training plan. Before an application for a STEM OPT employment authorization document (EAD) can be filed, the employer and the F-1 student must prepare and sign a formal training plan and submit it to the student's designated school official (DSO). DHS is expected to issue a new Form I-983, the Training Plan for STEM OPT Students, once the new regulation is published.

     The plan must state the specific goals for the STEM OPT period and how they will be achieved; detail the specific knowledge, skills or techniques the employer will impart to the student; explain how the training is directly related to the student's STEM degree; and describe how the student will be supervised and evaluated. The final rule clarifies that employers can rely on their existing training policies to satisfy the evaluation and supervision requirements, as long as their policies meet the requirements of the rule.

     DHS originally sought to require employers to establish a formal mentoring process for F-1 students on STEM OPT, but dispensed with this requirement in the final regulation.

     Employer attestations. Employers must certify the following in the training plan:

  • The terms and conditions of the STEM OPT employment - including compensation - are commensurate with those provided to similarly situated U.S. workers. Compensation information must be disclosed in the training plan.

  • The STEM OPT student will not "replace" a full- or part-time, temporary or permanent U.S. worker. The proposed regulation would have required the employer to attest that no U.S. worker would be terminated, laid off or furloughed a U.S. worker. 

  • The employer has sufficient resources and personnel to train the student in the position.

  • The training is directly related to the STEM degree and the offered position will achieve the objectives of the training plan.

     Evaluations. The employer and the F-1 student must complete a performance evaluation after the first 12 months of STEM OPT and at the conclusion of the STEM program. Evaluations must be signed by the student and employer, and the student must submit the evaluation to the DSO within ten days after the conclusion of the review period. DHS originally planned to require evaluations every six months during STEM OPT, but opted for a reduced evaluation requirement in response to feedback from stakeholders.

     Employment termination. The employer is required to notify the DSO within five business days if the F-1 student is terminated or departs the STEM OPT job; under prior rules, the employer had 48 hours to make this notification.

     Changes in the training plan. Employers and students are obligated to notify the DSO "at the earliest available opportunity" if there are material changes to or deviations from the training plan. Material changes include a decrease in the F-1 student's compensation that is not tied to a reduction in work hours; a significant decrease in work hours; any decrease in work hours below the minimum 20 hours per week (excluding time off pursuant to the employer's leave policy); a change in the employer's EIN due to corporate restructuring; or any change or deviation that renders the employer's attestations invalid or the training plan inaccurate. 

     E-Verify.  As under prior rules, employers must be enrolled and participating in E-Verify to employ an F-1 student in STEM OPT. The new regulation does not change this obligation but commentary to the rule specifies that the employer must participate in E-Verify at the location where the student will work.

AGENCY ENFORCEMENT

The new regulation gives U.S. Immigration and Customs Enforcement (ICE) the authority to conduct on-site reviews to verify whether employers are adhering to their training plans and otherwise complying with STEM OPT program requirements. The agency will give employers 48 hours' notice of a site visit, unless the visit is triggered by a complaint or other evidence of noncompliance.

STUDENT OBLIGATIONS

All F-1 students on STEM OPT will be required to:

  • Report to the DSO within 10 days after starting a new STEM OPT job. If there is a job change from the original STEM job, the student must submit the new employer's training plan to the DSO, who must make a new recommendation for STEM OPT.

  • Report to the DSO within 10 days of a change in their legal name, residence address, employer's name and address or loss of employment.

  • Report to the DSO any material changes to the training plan "at the earliest available opportunity," as described above.

  • Report to the DSO every six months to confirm the accuracy of information in their SEVIS record, including their legal name and residence address, employer name and address and the status of their current employment.

As under prior rules, F-1 students on STEM OPT are subject to limits on unemployment, but those limits will increase. The new rule allows STEM OPT students a maximum of 150 days of unemployment during their entire post-completion OPT period  - 90 days for the initial 12-month grant and an additional 60 days once granted a STEM extension. Previously, F-1s granted STEM OPT were limited to a maximum of 120 days of unemployment during the post-completion OPT period.

APPLICATION PROCEDURES

USCIS will begin to accept applications for a STEM extension of work authorization under the new rule on May 10, 2016. Before an application can be submitted, the following steps must be completed:

  • STEM OPT employer and the F-1 student must prepare and sign the training plan. 

  • The student must submit the training plan to the DSO. 

  • The DSO must review the plan to ensure that it is complete and signed and that it addresses program requirements.  

  • The DSO must approve the training plan and recommend STEM OPT extension by endorsing the F-1's Form I-20.

  • USCIS Form I-765, the application for employment authorization, and supporting documentation must be submitted during validity of F-1's initial OPT EAD and within 60 days of the DSO's recommendation. The training plan need not be submitted with the application, but USCIS has the authority to request for a copy of the plan.

If the current OPT EAD expires while the STEM extension is pending, the F-1 student's employment authorization is automatically extended for up to 180 days while the application is adjudicated, as under current rules.

TRANSITIONAL RULES FOR STEM OPT APPLICATIONS FILED BEFORE MAY 10

Between now and May 9, 2016, USCIS will continue to accept STEM OPT EAD applications under existing rules. A STEM OPT EAD that is granted before May 10 will be valid for 17 months and will be subject to earlier program requirements. However, if the application is pending on or after May 10, USCIS will adjudicate it under the new regulations and will issue a request for a training plan that meets the new requirements. If approved, the EAD will be issued for 24 months. 

TRANSITIONAL RULES FOR F-1 STUDENTS ALREADY ON STEM OPT

F-1 students who hold a valid 17-month STEM OPT EAD issued and valid before May 10, 2016 can continue to work through their EAD expiration, unless their EAD is withdrawn or revoked. They and their employers will be subject to earlier program rules.

F-1 students in a period of 17-month STEM OPT can file for a seven-month extension between May 10, 2016 and August 8, 2016 , provided that the student has at least 150 days remaining on their current EAD at the time the application is filed and the requirements of the new regulation - including an approved training plan - are met. If the student's OPT EAD expires while the new application is pending, he or she receives an automatic extension of work authorization for up to 180 days or until the application is adjudicated.

F-1 students who have completed their OPT period and are in the 60-day grace period are not eligible to file for a STEM extension under the new or current rules.


CAP-GAP BENEFITS FOR F-1 STUDENTS AWAITING A CHANGE OF STATUS TO H-1B


The new regulation maintains "cap gap" protections for F-1 students who are awaiting a change of status to H-1B. As under prior rules, an F-1 student who is the beneficiary of an H-1B cap petition and a request to change status to H-1B filed while her OPT EAD is valid receives an automatic extension of status and work authorization from the expiration of the EAD through October 1, the date that the change of status takes effect. A  student in valid F-1 status without OPT or with an expired OPT EAD  when the cap petition is filed receives an extension of stay only.

In commentary to the final regulation, the agency reaffirms that cap-gap protections are available only when the F-1 student is the beneficiary of an H-1B petition that is subject to the annual cap; a petition for cap-exempt H-1B employment will not confer these interim benefits. The agency also clarifies that F-1 students in the cap gap may change employers.


WHAT THE NEW REGULATION MEANS FOR EMPLOYERS AND F-1 STUDENTS

The highly anticipated rule broadens employment opportunities for F-1 STEM students, but the significant new obligations on students, employers and schools will require prompt planning. Employers and F-1 students who will pursue STEM OPT employment must act quickly so they can meet additional requirements in time to file applications when the new rule takes effect. Timely filing is particularly critical for those with an OPT EAD that expires soon, and for those who want to seek a seven-month extension of their current STEM OPT.

 

 

Reprinted with permission of Fragomen, Del Rey, Bernsen & Loewy, LLP.

© Fragomen Worldwide. All Rights Reserved.

Premium Processing for H-1B Extensions to Be Suspended Until July 27

May 19, 2015

 

USCIS will suspend premium processing for H-1B extensions from May 26 through July 27 in order to devote resources to the upcoming H-4 employment authorization program. The unexpected announcement is likely to have a significant negative impact on employers, H-1B foreign nationals and their H-4 dependents. Fragomen and other immigration stakeholders are working to obtain clarification from USCIS and to communicate the effect of the suspension on U.S. businesses.

 

The Scope of the Suspension

 

The announcement says that it affects H-1B “extensions,” but it is not clear whether USCIS is limiting the premium processing suspension to extensions of stay within the United States. USCIS has not said whether other requested actions are affected – such as consular notifications, changes of employer or petition amendments.The premium processing suspension does not affect H-1B cap cases or petitions for other nonimmigrant classifications filed on Form I-129, such as L-1 and O-1 cases.

 

Impact on H-1B Extensions Filed Before May 26

 

It is uncertain whether USCIS will honor premium processing requests filed with H-1B extensions before May 26. USCIS’s announcement contains conflicting statements on this issue.Employers and foreign nationals should prepare for the possibility that an extension already on file or filed before May 26 could be downgraded to regular processing, delaying the adjudication of the case. If this occurs, USCIS would return the premium processing fee. It is not yet known whether USCIS will give priority to these cases once the suspension is lifted.

 

Impact on Travel

 

The suspension may have a severe impact on many H-1B employees planning international travel this summer. Though H-1Bs with a valid visa and valid I-94 can travel and reenter while their extension application is pending, those whose I-94 has expired will be unable to return to the United States until their petition is approved.

 

Impact on H-4 EAD Applications

 

The stated goal of the premium suspension is to allow USCIS to adjudicate H-4 employment authorization applications, which the agency will begin to accept on May 26. However, the suspension could delay EADs for H-4s who need their H-1B spouse’s extension of stay to obtain an EAD. An H-4 can establish eligibility for an EAD if their H-1B spouse obtains an extension of stay beyond their six-year maximum based on a long-pending labor certification or Form I-140 petition. If the spouse’s extension cannot be premium processed, the H-4 will have to wait longer for employment authorization.

 

 

Reprinted with permission of Fragomen, Del Rey, Bernsen & Loewy, LLP.

© Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

 

 
 

Reminder: Travel Tips for Foreign Students Awaiting a Change of Status to H-1B

 

Are you an F-1 student who is the beneficiary of an H-1B petition and a request to change status to H-1B for employment starting on October 1, 2015? If you are planning to travel abroad between now and October 1, you should carefully consider whether your travel is necessary.

Traveling internationally during this time can pose significant risks and result in delays, depending on whether you are in an ongoing course of study or period of optional practical training (OPT), or whether you are in the “cap gap” – the period between the end of your course of study or OPT and October 1, the date that a timely-filed H-1B petition and change of status will take effect.

If you cannot postpone travel until after October 1, you should be aware that you may not be able to reenter the United States in F-1 status during the months before your H-1B petition takes effect. Instead, you may need to wait outside the United States and apply for an H-1B visa to reenter in time for your H-1B employment start date. If you do decide to travel abroad, you must make sure to have all necessary travel documents and be prepared for possible delays at U.S. consulates and ports of entry. Make sure to contact your designated Fragomen professional to discuss any travel plans.

The following are some answers to frequently asked questions and important tips to consider if you are thinking about leaving the United States before October 1.

1. My H-1B petition and application to change status to H-1B have been filed and are pending with USCIS. May I travel internationally while they are pending?

If you leave the United States before your change of status is approved by USCIS, you will have to take extra steps to assume your H-1B status on October 1.

According to a longstanding government policy, if you travel abroad while your H-1B petition and request to change status are being processed, the change of status portion of your case will be considered abandoned. USCIS could still approve the H-1B petition itself, but you would not automatically change to H-1B status on October 1. Instead, you would have to leave the United States again and apply for an H-1B visa at a U.S. consulate or, if otherwise permissible, have your employer submit a new petition to change status to H-1B after your return. If you apply for an H-1B visa abroad, you could be subject to a long wait overseas during the visa application process, which could delay your return to the United States and your ability to begin your H-1B employment on time. See below for more information about the visa application process.

2. I am an F-1 student who is still in school and I am not applying for optional practical training. After my H-1B petition and application to change status are approved, can I travel abroad before October 1?

After your change of status is approved but before it takes effect on October 1, you should be able to travel abroad and reenter, as long as your course of study is not finished and you are coming back to the United States to resume your studies. (If you will be finished with school by the time you travel, see Question 3.)

When you travel, make sure you are carrying a valid passport with a valid F-1 visa stamp and a Form I-20 that is endorsed for travel. If your F-1 visa is no longer valid and you will need to get a new one to reenter in F-1 status, you should expect delays during the visa application process. If you have an approved H-1B petition, it may be difficult for you to demonstrate nonimmigrant intent, which is a requirement for F-1 students. See Question 6 for more information about these issues.

3. I am finished with my F-1 course of study and I am not applying for optional practical training. After my H-1B petition and change of status are approved, will I be able to travel abroad?

You cannot return to the United States in F-1 status if you travel abroad after your studies are finished. As long as your H-1B petition was filed before your F-1 student status expired, you can remain in the United States during the cap gap period between the end of your F-1 period of stay (including 60-day grace period) and October 1. But an F-1 student who travels abroad during the grace period or the cap gap cannot be readmitted to the United States in F-1 status. If you must leave the United States, you will have to apply for an H-1B visa to return, and will not be able to work until October 1. See Question 7 for more information about H-1B visa application procedures and delays.

4. I am a J-1 exchange visitor who is the beneficiary of an approved H-1B petition for employment starting October 1, 2015. May I remain in the United States until then?

It depends. As a J-1 exchange visitor, you are authorized to remain in the United States for the duration of your exchange program, plus a grace period of 30 days. If your J-1 period of stay and grace period end before September 30, 2015, you must depart the United States and apply for an H-1B visa abroad. You are not eligible for a change of status to H-1B because there will be a gap between the end of your period of authorized stay and the day your H-1B petition takes effect. Unlike F-1 students, J-1 exchange visitors are not eligible for cap gap benefits.

However, if your J-1 period of stay (including grace period) remains valid through the start date of your approved H-1B petition and application to change status to H-1B, you may remain in the United States in J-1 status before your change of status takes effect.

5. I am an F-1 student awaiting a change of status to H-1B and my OPT has expired. If I travel before October 1, what are the risks?

If you travel abroad after your OPT has expired, you cannot return to the United States in F-1 status. As long as your H-1B petition was filed before your OPT expired, you can remain in the United States and work during the cap gap period between the end of OPT and October 1. But if you have completed studies and OPT and you travel abroad during the cap gap, you cannot be readmitted to the United States in F-1 status.

If you must leave the United States, you will have to wait to apply for an H-1B visa to return. You will not be able to work again in the United States until October 1. See Question 7 for more information about H-1B visa application procedures and delays.

6. I am currently in a valid period of OPT and I have a valid employment authorization document. Is international travel possible if my change of status petition has been approved?

Yes, if you are in valid OPT, have a valid EAD and your change of status to H-1B has been approved before you leave, you should be able to return to the United States in F-1 status, as long as you have the appropriate documents and are able to show visa and immigration officers that you intend to comply with F-1 rules, including having nonimmigrant intent. If your H-1B change of status is approved before you depart the United States, the change of status will take effect on October 1 as long as you have returned to the United States before that day.

You will need the following documents to reenter in F-1 status:

  • A valid passport with a valid F-1 visa stamp. If you need to apply for a new F-1 visa stamp to reenter the United States as a student, you should expect delays at the U.S. consulate and at the port of entry (see Question 7 for more details);

  • A Form I-20 that is endorsed for travel by a designated school official; 

  •  A valid EAD. If you are applying for an extension of your OPT on the basis of a degree in a designated science, technology, engineering or mathematics (STEM) field, you should not leave the United States until you receive your new EAD for the extension period; and 

  •  A letter from your OPT employer that verifies your employment. You must have an OPT job or job offer before you leave the United States. If you go abroad before you find a job, your OPT period will be terminated and you will not be able to return to the United States unless and until you obtain an H-1B visa.

If you travel abroad while on OPT, caution is advised. In particular, pay attention to the number of days you spend outside the United States, because that time could be counted against the regulatory limit on unemployment during the OPT period. USCIS rules require an F-1 student to have no more than 90 days of unemployment during OPT (or 120 days for F-1s who have received an OPT extension based on a STEM degree). This includes time spent outside the United States, unless international travel takes place during leave that is authorized by your OPT employer or is part of your OPT employment.

7. Before October 1, I plan to leave the United States and reenter in my F-1 status, but I will need to apply for a new F-1 visa while I am abroad. What should I expect during the visa application process and at the port of entry?

You should be prepared for possible delays and difficulties when you apply for a new F-1 visa and when you are inspected at the border.

First, like any visa applicant, you could be required to go through a security clearance before your visa can be issued. If your name, personal details or travel history match or are similar to information in government security databases or travel watch lists, the State Department will not be able to issue a visa until it confirms that you are not the same person as an individual who appears on a security list. Many security clearances get resolved in a matter of weeks, but if you have a common name, your clearance could take several months or longer. If this occurs, your reentry to the United States could be delayed.

Second, officials at U.S. consulates and the U.S. border may question whether you have nonimmigrant intent, i.e., whether you genuinely intend to return to your home country. Having a foreign residence that you do not intend to abandon is a requirement for F-1 status. If you have an approved H-1B in the system, consular and border officials will know that you have a professional job in the United States – a possible indication of strong ties to the United States. If a consular or border officer questions your intentions, you could have your visa or entry denied or delayed, and may have to wait overseas until you can apply for an H-1B visa to enter and start your H-1B employment. Having a foreign residence is not a requirement for an H-1B visa.

8. If I decide to leave the United States before October 1, how soon can I apply for my H-1B visa and enter the United States in H-1B status?

You can generally apply for your visa up to 90 days before your H-1B petition start date, according to State Department rules. If your start date is October 1, 2015, you would be able to apply for your H-1B visa no earlier than July 3, 2015. But procedures differ among U.S. consulates, so you should check with the consulate where you will apply for specific instructions on when you can submit your visa application. Contact information for U.S. embassies and consulates is available at http://usembassy.gov/.

Once you have applied for your H-1B visa, be prepared for a possible security clearance. As discussed in Question 7, if your name, personal details or travel history match information in government security databases or on travel watch lists, the State Department will not be able to issue your visa until it confirms that you are not the same person as a listed individual. A security clearance may also be required if you will work in high technology, engineering or the sciences, or with products or services that have both commercial and military applications (known as "dual use" technologies). Security clearances typically get resolved in a matter of weeks, but could take several months or longer depending on the circumstances.

Once you have received your H-1B visa, you may enter the United States up to ten days before your H-1B petition start date. If your start date is October 1, 2015, you can enter as early as September 21, 2015. The extra ten days allows you to get settled in the United States, but you cannot do H-1B work during this time. You are not authorized to start your H-1B employment until your actual petition start date.

 

 

Reprinted with permission of Fragomen, Del Rey, Bernsen & Loewy, LLP.

© Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

Copyright 2017 © The United States of America-China Chamber of Commerce. All rights reserved. 

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