Graduates in STEM OPT Can Now Extend OPT for up to 24 Months

Thousands of U.S-educated, foreign-born recent graduates can now breathe a sigh of relief. The Department of Homeland Security (DHS) has amended its F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period to 24 months (STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students. The rule also improves and increases oversight over STEM OPT extensions by requiring the implementation of formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools.

As of Friday, March 11, 2016, the final 24-month STEM OPT rule was published in the Federal Register.  As stated above, this new rule effectively extends the STEM OPT, which will allow participants both more time for training, as well as a better chance of later obtaining an H-1B nonimmigrant worker’s visa.  The new, 24-month STEM OPT rule is effective as of Tuesday, May 10, 2010. The current 17-month STEM OPT rule remains in effect through May 9, 2016.

In the meantime, the following groups of students are most immediately affected by the transition from the current rule to the new rule. In other word, these following students should make decisions now in order to preserve their eligibility for STEM OPT benefits:

1. Students who have already applied to USCIS for a 17-month STEM OPT extension, but whose applications may still be pending on May 10;
2. Students who already have an approved 17-month STEM OPT extension, but are interested in a possible 7-month extension under the new rule; or
3. Students whose standard 12-month OPT will expire before May 10.

 

9 FAQs:

(1) Does this new rule affect individuals in regular, non-STEM OPT status?

Answer:

No. The new rule only affects OPT extensions related to STEM degree holders.

 

(2) What will happen to my OPT if I am a student who already applied to USCIS for a 17-month STEM OPT extension, but whose application might still be pending on May 10, 2016?

Answer:

For 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, USCIS will issue you an RFE (request for evidence).

The RFE will “request documentation that will establish that the student is eligible for a 24-month OPT extension” under the new rule. In response to the RFE, the student will need to include a new Form I-20 endorsed on or after May 10, 2016, indicating that the Designated School Official (DSO) recommends the student for a 24-month OPT extension, a completed and signed Form I-983 Mentoring and Training Plan, and any other documentation to establish that the requirements for a STEM OPT extension have been met.

 

(3) I have a 17-month STEM OPT extension that was approved before May 10, 2016, and I either don’t need, or don’t want, the 24-month extension. Do I need to do anything?

Answer:

No. You have the option to continue the 17-month period until it ends, without applying for an extension. If you choose this option, the standards of the 17-month rule will govern that STEM OPT period throughout its term.

 

(4) I already have a 17-month STEM OPT extension that was approved before May 10, 2016, but I want to take advantage of the new rule and extend my OPT to 24-months. What should I do?

Answer:

You have the option to request the balance of the modified extension (i.e., the extra 7 months). However, note that not all students with an approved 17-month STEM OPT will qualify. To be eligible for the 7-month extension, the student must meet all of the following conditions:

• (1) Properly file a Form I-765, with USCIS on or after May 10, 2016, but on or before August 8, 2016, and file the I-765 within 60 days of the date that the DSO enters the recommendation for the 24- month OPT extension into the student’s SEVIS record. File this with applicable fees and supporting documentation, including a new Form I-20 endorsed on or after May 10, 2016, indicating that the DSO recommends the student for a 24-month OPT extension, a completed and signed Form I-983 Mentoring and Training Plan, and any other documentation to establish that the requirements for a STEM OPT extension under the standards of the new final rule have been met;
• (2) You must have at least 150 calendar days remaining prior to the end of your 17-month OPT extension at the time you file the Form I-765; AND
• (3) You must meet all the requirements for the 24-month OPT extension under the new final rule, except the requirement that you must be in a valid period of standard 12-month post-completion OPT at the time of filing.

 

 (5) If I choose not to extend my OPT to 24-months, does this mean I can accrue an additional period of STEM OPT?

Answer:

No. Whether or not you decide to extend your 17-month STEM OPT for 7 months, your OPT will still count as “one” period of STEM OPT. After this, you will have only one more lifetime period of STEM OPT eligibility under the new rule, after completing a higher degree.

 

(6) I am a student whose standard, 12-month OPT will expire before May 10. How does this new rule affect my OPT?

Answer:

A student currently authorized for a period of 12-month standard post-completion OPT whose 12-month OPT will expire prior to May 10, 2016 must be sure to take proper action to preserve his or her eligibility for STEM OPT by applying for a 17-month STEM OPT extension before her 12-month standard post-completion OPT expires, since an application for STEM OPT under either rule requires the student to be in a valid period of standard 12-month OPT at the time the application for STEM OPT is filed with USCIS.

Even though the student will likely receive an RFE as described above (i.e., if the application is not adjudicated by May 10), failing to file for a STEM OPT extension before the expiration of standard 12-month OPT will render the student ineligible for a STEM OPT extension. The final rule advises such students to apply for the 17-month STEM OPT extension before the end of their 12 months of standard 12-month OPT.

 

(7) What other requirements should my employer be aware of regarding the new rule?

Answer:

Your employer must incorporate a “formal training plan,” which includes concrete learning objectives, and your employer must provide proper oversight. As a student, you must complete a new Form I-693 and submit this to the DSO, documenting your employer’s formal training plan before the DSO can provide approval for the STEM Extension.

 

(8) How many hours do I need to work to qualify for the STEM OPT Extension?

Answer: Students must work a minimum of 20 hours per week per employer to qualify.

 

(9) How does the new rule affect periods of unemployment?

Answer:

Students are still permitted a limited period of unemployment during the initial period of post-completion OPT and the STEM OPT extension. Students granted a 24-month OPT extension may not accrue an aggregate of more than 150 days of unemployment during a total OPT period, including any post-completion OPT period and any subsequent 24-month extension period.