On October 19, 2015, the U.S. Department of Homeland Security (“DHS”) published a proposed rule to amend its F-1 nonimmigrant student visa regulations with respect to students in Science, Technology, Engineering or Math (“STEM”).
F-1 students may apply for Optional Practical Training (“OPT”) that permits the student to remain after graduation to work with an American business for 12 months. In 2008, rules were promulgated that allowed STEM students to pursue an additional 17 month OPT extension to work for an employer that uses E-verify. These 2008 rules were recently invalidated on procedural grounds. However, the Court gave the DHS until February 12, 2016 to promulgate a new rule. In response to the Court order, DHS has promulgated new proposed rules on OPT STEM extensions, including the following noteworthy changes:
(1) students who would have previously been eligible for participation in the 17-month OPT STEM extension would be eligible for a 24-month extension;
(2) the proposal addresses which fields of study may serve as a basis for OPT STEM extensions based on the U.S. Department of Education’s published definitions;
(3) employers would be required to implement formal programs to mentor and train students in their selected STEM study;
(4) an F-1 student participating in OPT in a field that is not STEM based, but holding a previously obtained STEM degree, may still seek an OPT STEM extension utilizing their prior degree in STEM;
(5) the employer will have to attest that it will not terminate U.S. workers as a result of offering OPT to students;
(6) STEM eligibility will be limited to students with degrees from accredited schools and DHS will have discretion to conduct on-site visits to verify whether employers are meeting program requirements; and
(7) DHS would temporarily extend an F-1 student’s duration of status and employment authorization if the student is a beneficiary of a timely filed H-1B petition (the so call “Cap-Gap Extension”).
If the Final Rule does not take effect prior to February 13, 2016, there will be uncertainty for those currently on their OPT STEM extension or those applying for extensions. DHS noted that if the Rule is not finalized in time, it will lack authority to approve applications, and is evaluating options to address pending applications such as returning them and requiring re-filing upon completion of a final rule.