DHS Issues Final Rule on OPT Extensions for F-1 Students in STEM Programs and Cap-Gap Coverage | Practical Law

DHS Issues Final Rule on OPT Extensions for F-1 Students in STEM Programs and Cap-Gap Coverage | Practical Law

The Department of Homeland Security (DHS) has issued a Final Rule extending the optical practical training (OPT) period for certain students in F-1 status who have science, technology, engineering, or mathematics (STEM) degrees from an accredited US institution of higher learning. The rule also extends cap-gap employment authorization coverage for foreign students whose status and employment authorization expires before an H-1B petition approved on the students' behalf can take effect at the beginning of the next fiscal year.

DHS Issues Final Rule on OPT Extensions for F-1 Students in STEM Programs and Cap-Gap Coverage

by Practical Law Labor & Employment
Published on 15 Mar 2016 • USA (National/Federal)
The Department of Homeland Security (DHS) has issued a Final Rule extending the optical practical training (OPT) period for certain students in F-1 status who have science, technology, engineering, or mathematics (STEM) degrees from an accredited US institution of higher learning. The rule also extends cap-gap employment authorization coverage for foreign students whose status and employment authorization expires before an H-1B petition approved on the students' behalf can take effect at the beginning of the next fiscal year.
On March 11, 2016, the Department of Homeland Security (DHS) issued a Final Rule extending by 24 months the optical practical training (OPT) period for students with F-1 nonimmigrant visas who have science, technology, engineering, or mathematics (STEM) degrees from accredited US colleges, universities and other higher learning institutions. F-1 STEM students may now extend their OPT training period from 12 months to 36 months. Along with providing greater benefits, the rule places new obligations on employers.
The F-1 nonimmigrant visa is available to students who seek temporary admission in the US to engage in full-time study in an authorized academic or language training program at a college, university or other higher learning institution (see Key Nonimmigrant Visa Classifications Chart).
OPT:
  • Is a form of temporary employment available to F-1 students.
  • Directly relates to the students' study area.
The new DHS rule:
  • Replaces the prior 17-month STEM OPT extension period.
  • Retains the requirement that employers of students with STEM OPT be enrolled in E-Verify.
  • Enhances DHS oversight over STEM OPT extensions by:
    • providing wage and other protections for STEM OPT students;
    • allowing DHS to perform site visits to employer locations where STEM OPT students are employed; and
    • permitting OPT extensions only for students who have degrees from an accredited institution.
  • Reestablishes cap-gap coverage for F-1 students whose status expires before a timely-filed, approved H-1B petition takes effect.
In addition to requiring that employers enroll in E-Verify to gain the benefit of the extension, the rule also requires employers to:
  • Implement formal training plans for STEM OPT students that identify students' learning objectives and how those objectives will be attained.
  • Sign a newly-required student self-evaluation report in which the STEM OPT student reports his progress to school officials.
  • Report:
    • changes in a STEM OPT student's employment status, including the student's termination or departure from the employer; and
    • material changes in the STEM OPT student's formal training plan.
  • Attest that:
    • it has sufficient resources and trained personnel available to provide appropriate training to STEM OPT students;
    • the extension given to a STEM OPT student will not involve replacing a full-time or part-time temporary or permanent US employee; and
    • the opportunity will help the STEM OPT student attain his training objectives.
The rule takes effect on May 10, 2016.
The Student and Exchange Visitor Program (SEVP) launched an information page on DHS's Study in the States website to help school officials, students and employers understand the new STEM OPT regulations.
For more information on the history of the rule, see Legal Update, Rule Extending OPT for F-1 Students in a STEM Program Invalidated; Vacatur Stayed For Six Months: DC District Court.