On March 11, 2016, the 24-month STEM OPT Final Rule was published in the Federal Register (81 FR 13039).
HIGHLIGHTS OF THE NEW RULE
• 24-month STEM OPT rule is effective Tuesday, May 10, 2016 — The OPT extension period for STEM OPT students is increased to 24 months from the present 17 months
• Only two 24-month STEM OPT extensions are allowed during a student’s lifetime – for the second extension, the completed degree must be at a higher level (for example: Master’s degree following a Bachelor’s degree) – this is different from the current rule which allowed only one lifetime STEM extension irrespective of the completed degree being at a higher level
WHAT HAPPENS IF YOUR 17-MONTH STEM OPT APPLICATION IS PENDING ON MAY 10, 2016?
If a 17-month STEM OPT application is still pending with USCIS as of May 10, 2016, USCIS will apply the new final rule. USCIS will send an RFE requesting additional evidence that student is eligible for 24-month OPT extension, such as:
• New Form I-20 endorsed on or after May 10, 2016 for 24-month OPT extension,
• Completed Form I-983 (Mentoring and Training Plan), and
• Any other documentation to establish that the requirements for a STEM OPT extension under the new final rule have been met.
WHAT DO YOU DO IF YOUR 17-MONTH STEM OPT APPLICATION WAS APPROVED PRIOR TO MAY 10, 2016?
If the 17 month STEM OPT Extension was approved prior to May 10, 2016 and student wants the additional 7 months, this is what he/she must do:
File Form I-765, with USCIS between May 10, 2016 and August 8, 2016, and within 60 days of the date the DSO enters the recommendation for the 24- month OPT extension into the student’s SEVIS record, with applicable fees and supporting documentation, including:
• New Form I-20 endorsed on or after May 10, 2016 for 24-month OPT extension,
• Completed Form I-983 (Mentoring and Training Plan), and
• Any other documentation to establish that the requirements for a STEM OPT extension under the new final rule have been met.
• Must have at least 150 calendar days remaining until the end of the 17-month OPT extension when Form I-765, is filed; and
• Meet all the requirements for the 24-month OPT extension under the new rule, except the requirement that the student must be in a valid period of standard 12-month post-completion OPT at the time of filing.
WHAT DO YOU DO IF YOUR STANDARD 12-MONTH OPT WILL EXPIRE BEFORE MAY 10, 2016?
In that case go ahead and apply for the 17 month STEM OPT extension, as the student must be in a valid 12 month OPT period to apply for extension.
WHAT ARE THE FILING DEADLINES UNDER NEW RULE?
Under the 24-month STEM OPT rule, a student must properly file a STEM OPT extension request within these general deadlines:
• On or after the May 10, 2016 effective date of the final rule;
• Before the expiration of the student’s standard 12-month OPT; and
• No later than 60 days from the date the DSO recommended the benefit in SEVIS (Under the current rule, USCIS had to receive the application within 30 days of the DSO recommendation). The 60-day period applies only to STEM OPT Extension.
As under the current rule, upon filing a timely STEM OPT extension application, student can continue working for up to 180 days beyond the expiration of the student’s standard post-completion OPT.
WHAT ARE SOME OTHER IMPORTANT ELEMENTS OF NEW RULE?
• Students who have not yet completed thesis or dissertation are still eligible for STEM OPT
• Degree that is the basis for the 24-month extension must be from a accredited U.S. located educational institution
• Prior STEM degree can serve as a basis for STEM extension under certain conditions
• Unpaid Positions and Volunteer positions do not qualify for STEM extension
• Self Employment does not qualify for STEM extension
• Wages, hours, and duties, must be commensurate with the terms and conditions applicable to the employer’s similarly situated U.S. workers in the area of employment
• Unemployment period can’t exceed 60 days during the STEM OPT Extension Period
• USCIS may conduct Site Visits to verify compliance
• Employer must be e-Verify
• Students may travel while on STEM extension if they have an unexpired F-1 visa and an I-20 issued within last 6 months
• Cap-gap rules applies to STEM extension
ADDITIONAL REPORTING
Six-month Validity Reports: Every 6 months, student must relay back the below information to DSO:
• Student’s Legal name
• Residential or mailing address
• Employer name and address
• Status of current employment/practical training experience
Updated Form I-983 Mentoring and Training Plan: A new Form I-983 (Mentoring and Training Plan) must be submitted to the DSO within 10 days of:
• Starting new practical training with a new employer during the 24-month extension
• Any time there is a “material change” in the terms and conditions of the original I-983
SELF EVALUATION REQUIREMENTS
A student must complete two self-evaluations during the course of his or her STEM OPT period: the first one within 12 months of the STEM OPT start date and a second, concluding evaluation at the end of his or her STEM OPT period. Evaluations must be signed by the student and his or her immediate supervisor, and then submitted to the DSO. The school whose DSO recommended the student’s STEM OPT extension is responsible for ensuring that SEVP has access upon request to each student evaluation (in either electronic or hard copy), beginning 30 days after the document is submitted to the DSO and for three years following the completion of each STEM practical training opportunity.
CONCLUSION
This is a complicated rule and we have presented a high level overview/ highlights of this new rule in this current edition of GLF newsletter. For any in-depth discussion, beyond the scope of this Newsletter, we request you to setup a Consultation appointment with a GLF attorney.