DHS Announces Proposed Rule for F-1 STEM OPT

F-1 STEM OPT Extension
Thursday, October 29, 2015 - 3:30pm


“Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students”

In response to a recent court decision would have prevented the Department of Homeland Security (DHS) from granting optional practical training (OPT) work permits to some foreign graduates, the DHS has published a proposed rule in the Federal Register. This rule would amend the DHS F-1 regulations to allow for OPT extensions for certain graduates in science, technology, engineering, and mathematics (STEM) fields, as well as continue current “cap-gap” relief for all eligible F-1 students. DHS has issued this proposal at this time so that the Rule will become effective prior to February 12, 2016, thus curing deficiencies found by the federal court in the above referenced litigation.

The Proposed Rule would do the following:

  • Allow F-1 students that have elected to pursue 12 months of OPT in the U.S. to extend the OPT period by 24 months (STEM OPT extension). This 24-month STEM OPT would replace the current 17-month STEM OPT extension.
  • More clearly identify which fields of study that may serve as the basis for a STEM OPT extension.
  • Increase the oversight of the STEM OPT extensions by requiring the implementation of formal mentoring and training plans by employer to augment students' academic learning through practical experience. This is intended to equip students with a more comprehensive understanding of their selected area of study and broader functionality within that field.
  • Add wage and other protections for STEM OPT students and U.S. workers.
  • Allow STEM OPT extensions only to students with degrees from accredited schools.
  • Expand the eligibility of STEM OPT for certain students whose most recent degree is not in a STEM field.
  • Retain the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allow an additional 60 days (for an aggregate of 150 days) for students who obtain a 24-month STEM OPT extension. The current regulation allows an additional 30 days, for an aggregate of 120 days.
  • Continue to limit STEM OPT extensions only for students employed by employers enrolled in the U.S. Citizenship and Immigration Services’ E-Verify employment eligibility verification program.
  • Keep the “Cap-Gap” relief that was initially introduced in 2008 for any F-1 student with a timely filed H-1B petition and request for change of status. This Cap-Gap relief permits such students to automatically extend the duration of F-2 stats and any current employment authorization until October 1st of the fiscal year for which the H-1B visa is being requested. This is the same as the current regulations.

Public comments are due by November 18, 2015 and the Final Replacement Rule must be published by December 14, 2015.

For additional information, please contact your Maggio + Kattar attorney.