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STEM OPT Regulation Updates

The new STEM OPT Extension regulation has arrived!

In March we hosted several STEM OPT Townhall Meetings to discuss the new STEM OPT Extension regulation with SCU's international student and alumni community.

STEM OPT Extension Updates

Santa Clara has led the nation in communication with our F-1 students and alumni about STEM OPT Extension related executive action, immigration reform, court decisions and legal changes.

Please monitor this page for continuing coverage of STEM OPT Extension matters.

Summary of the new STEM OPT Extension Rule
History of STEM OPT Extension related updates
STEM OPT Extension Update FAQs

Summary of the new STEM OPT Extension Rule

On March 9, 2016, the Department of Homeland Security (DHS) released a final STEM OPT Rule that significantly expands and changes the STEM OPT Extension and addresses the concerns of the ongoing court case. The rule will be officially published on Friday March 11, 2016 and will go into effect on May 10, 2016. 

The full ruling is available online. Note, it is in PDF format and 300 pages, please consider the environment before printing.

ICE has developed a comprehensive STEM OPT Hub.

USCIS has released preliminary information.

Summary of the important changes in the final rule:

  1. Lengthens the STEM OPT Extension period from the current 17 months to 24 months.
  2. Allows students who earn multiple degrees to benefit from two periods of STEM OPT Extension based on higher degree levels. Currently, only one STEM OPT period is allowed per lifetime.
  3. Clarifies and expands the total unemployment allowable while engaged in OPT and STEM OPT Extension.
  4. Allows certain students who have prior STEM related degrees to file for STEM OPT Extensions based on the prior degree after OPT based on non-STEM related degrees.
  5. Re-affirms the “cap-gap” benefit for students with expiring OPT and STEM OPT Extensions and selected H-1B petitions.
  6. Re-affirms the ability to file for OPT up to 60 days after the completion of the academic program.

F-1 Students applying for and engaged in STEM OPT will be subject to additional reporting and must submit extra documentation, including attestations from their employer. This includes:

  • Reporting changes to name, U.S. address, and employment details to our office within 10 days;
  • Completing a mandatory reporting check-in every 6 months;
  • Submitting a formal Training Plan (Form I-983) to our office before the STEM OPT application can be processed. The Training Plan will be filled out by the student with feedback from the employer and is signed by the student and employer. It may need to be submitted to USCIS as a part of the STEM OPT Extension filing. It will be subject to DHS review and will be a required part of the immigration (SEVIS) record.
  • Submitting a formal employer-signed self-evaluations of the training progress to our office at the 12 and 24 month points in the STEM OPT Extension period. The self-evaluations will be subject to DHS review and will be a required part of the immigration (SEVIS) record.

STEM OPT Employers will be required to provide training and mentoring, assist the student in drafting and signing the formal Training Plan and the self-evaluations, be subject to random site visits, and must sign and submit various attestations. This includes attesting that:

  • The STEM OPT employment terms and conditions (including pay, hours, duties and benefits) are similar to the terms offered to U.S. workers in similar positions;
  • The employer will report the end date of employment directly to our office;
  • The employer has sufficient resources and training personnel available to provide mentoring and training;
  • The employer will not terminate, lay off, or furlough any full-or part-time, temporary or permanent U.S. workers as result of the STEM OPT employment; and
  • The opportunity benefits the student in attaining his / her training objectives.

History of STEM OPT related updates

Including executive action for immigration reform, court decisions and proposed regulatory changes.

DHS has sent the final STEM OPT rule to the OMB (Office of Management and Budget) for final review. This is the last step before the regulation is published! The final rule is expected to be published around March 10, 2016, to allow 60 days for training and preparation before the rule goes into effect by the May 10, 2016 deadline set by the court.

The District Court has approved DHS's motion to extend the stay of the vacatur of the STEM OPT rule from February 12, 2016 until May 10, 2016.

 The current 17 month STEM OPT regulation will be valid through May 10, 2016. The new regulation should be published and become effective no later than this date.

You can read the court order online here (PDF).

DHS responded to WashTech's brief and asks the court to specifically address what would happen if the current 17 month STEM rule expires before the new regulation can go into effect. Specifically: "In the event the Court denies DHS's Rule 60(b)(6) motion, the agency respectfully requests that the Court clarify that its vacatur will not affect the legal status of F-1 students holding unexpired employment authorization documents ("EADs") granted under the 2008STEM OPT Extension rule, and their dependents. Such an order of clarification is appropriate in light of the interests of many F-1 students, their schools, and their employers, and would help DHS ensure that it is in full compliance with the Court's order. Moreover, it will assist interested parties greatly as this case continues to move forward." DHS also asked the court to decide as soon as possible.

The Washington Alliance of Technology Workers (WashTech) has filed a motion arguing that the District Court should not (and does not have the authority to) grant the extension DHS requested extending the validity of the current 17 month regulation to May 10, 2016.

DHS has asked for an extension on the court case from February 12, 2016 to May 10, 2016, citing 50,000 public comments and the rulemaking process.

On December 22, 2015, after receiving over 50,000 comments on the proposed rule, DHS moved the WashTech court to extend the stay on the vacatur of the current STEM OPT rule from February 12, 2016 until May 10, 2016, to provide for "approximately 30 days to complete the rulemaking and 60 days for a delayed-effective-date period, under which DHS would train agency personnel and coordinate with the regulated community." (NAFSA.org)

On, October 19th, the Department of Homeland Security published a draft rule for 30 day public comment period that addresses the August 12th STEM OPT ruling and proposes to expand and change the STEM OPT Extension.  

We expect that the rule will be finalized before the February 12, 2016 May 10, 2016 deadline set by the courts. We also expect that there will be modifications to the content of the proposed rule before it is finalized.

You can review the rule here (107 pages, please think before printing).

 Summary of the important changes in the proposed rule:

  1. Lengthen the STEM OPT Extension period to 24 months (rather than 17 months).
  2. Allow students who complete a higher U.S. Degree level in a STEM field to benefit from a second period of STEM OPT Extension( rather than one period per lifetime).
  3. Allow students currently on the 17 month STEM OPT Extension to apply for the balance of the 24 month extension period.
  4. Expand STEM OPT Unemployment period to 60 days (rather than 30 days).
  5. Require STEM OPT Employers to:
  6. Submit a formal Mentoring and Training Plan to the University before the STEM OPT application can be processed. This Mentoring and Training Plan is a form that DHS will need to create. The Mentoring and Training Plan will be subject to DHS review and will be a required part of the immigration (sEVIS) record.
  7. Submit a formal evaluation of the STEM OPT program every six months.
  8. Offer STEM OPT employment terms and conditions (including pay, hours, duties and benefits) similar to the terms offered to U.S. workers in similar positions.
  9. Sign attestations that (1) the employer has sufficient resources and training personnel available to provide appropriate mentoring and training in connection with the specified opportunity; (2) the employer will not terminate, lay off, or furlough any full-or party-time, temporary or permanent U.S. workers as a result of providing the STEM OPT to the student; and (3) the students opportunity assists the student in attaining his or her training objectives.
  10. Be subject to random site visits by government officials.

The Secretary of the Department of Homeland Security (DHS) recently stated (video): "within the next thirty days we will provide public notice of a proposed rule to strengthen the program that provides optional practical training for students in STEM fields studying at U.S. universities."

First, the government finally issued a comment (PDF) saying "DHS is aware of the court's ruling, and we are working on a draft rulemaking. We are working aggressively to meet the court's deadlines."

More important, the DHS has submitted a new proposed rule for internal review  by the Office of Management and Budget ("OMB", the government office responsible to review drafts before publication).

The Washington Alliance for Technology Workers filed a notice of appeal with the U.S. Court of Appeals for the District of Columbia Circuit Court. No details have been released, but it is expected that the group is challenging the decision that the creation of the rule goes beyond the scope of DHS authority.

A U.S. District Court ruled that DHS did not follow the correct process when they enacted the regulation that created the 17 month STEM OPT extension. DHS has been given 6 months to fix this mistake. If DHS does not fix the mistake by February 12, 2016 May 10, 2016, the regulation allowing for STEM OPT will be cancelled. 

Read the full case decision here.

On November 20, 2014, President Obama announced plans to "expand and enhance" practical training opportunities for international students gaining degrees at U.S. universities.

Watch the announcement: https://youtu.be/wejt939QXko

Information from USCIS: https://www.uscis.gov/immigrationaction

Information from Department of Homeland Security: https://www.dhs.gov/immigration-action

STEM OPT Update FAQs

 

The rule will be published on March 11, 2016 and will go into effect on May 10, 2016. There will be further updates from various agencies, including USCIS on how to best file an application under this new rule but we can begin filing requests for 24 month extensions on or after May 10, 2016.

 

 

 

This new rule was drafted specifically to address the concerns of the court.  The court decision becomes effective February 12, 2016 May 10, 2016. The new regulation will take over on that date.

This new rule was drafted with the President's executive order " Immigration Accountability Executive Actions" and was written with the goals of immigration reform in mind.

Under the new law you may file your STEM OPT Extension up to 90 days before your current OPT expires. In most cases you will benefit from a longer STEM OPT Extension period of 24 months. In most cases you will need to follow the new rules and filing processes (including extra government forms, attestations and reporting requirements). In May 2016, we will begin offering monthly workshops on filing STEM OPT Extension applications.

Depending on your STEM OPT validity dates, you may be eligible for an additional 7 month extension of your STEM OPT period. We are analyzing F-1 immigration records and will individually contact impacted students and alumni with customized instructions before May 10, 2016.

 

 

Applications for 12 month post-completion OPT will not be impacted by this regulation change.

If your STEM OPT Extension application is approved before May 10, 2016, it will be valid for 17 months and you may be eligible for an additional extension of 7 months.

If your STEM OPT Extension application approved after May 10, 2016, USCIS will request that you provide updated forms and information before they can approve your case. Once the updated forms and information are provided, your STEM OPT Extension will be granted for 24 months.

We are analyzing F-1 immigration records and will individually contact impacted students and alumni with customized instructions before May 10, 2016.

If you are contacted by USCIS, please let our office know immediately.

If your current OPT expires on or before May 30, 2016, we recommend that you proceed with your STEM OPT Extension application now. 

If your current OPT expires after May 30, 2016, you may benefit from waiting to file your STEM OPT Extension until the new rule go into effect.

We are analyzing F-1 immigration records and will individually contact impacted students and alumni with customized instructions before May 10, 2016.

You should apply for your 12 month post-completion OPT before you graduate and up to 90 days before your program end date.

When it comes time to extend your OPT, if you have a STEM OPT Extension qualifying degree, you will benefit from a longer STEM OPT Extension period of 24 months. You will need to follow the new rules and filing processes (including extra government forms, attestations and reporting requirements). In May 2016, we will begin offering monthly workshops on filing STEM OPT Extension applications.

SCU students and alumni seeking to file for a second period of STEM OPT are encouraged to attend a STEM OPT Townhall Meeting and contact our office for personalized advising.

I am an SCU Student/Alum who has a previous degree in a STEM field but I am currently working on a higher degree level that is not in a STEM field. What does this new rule mean for me?

SCU students and alumni seeking to benefit from STEM OPT based on a prior degree are encouraged to attend a STEM OPT Townhall Meeting and contact our office for personalized advising.