USCIS Issued New STEM OPT Rules on October 19, 2015

On October 19, 2015 USCIS issued a proposed rule regarding STEM OPT extensions for those in F-1 status.  If you were not aware, USCIS was sued in Federal Court over the previous rules as there was no formal rule-making on those.  The Court gave USCIS until February of 2016 to go through the formal rule making process.  This is the first part of that process.  However USCIS did not just propose the same rule they had in place.  They have proposed a rule that is substantially different than the previous version.  Below is a summary of most of the provisions listed in the proposed rule:

  1. First, and foremost, the STEM extension would now be 24 months, not just 17 months.  Those who already are on the 17 month extension can apply for another extension for the remaining 7 months (there are certain restrictions in terms of when you need to file to recapture this 7 month period).  In addition, those who use the 24 month STEM extension, then enroll to receive another STEM degree get another 24 month STEM extension.
  2. USCIS also has further defined what STEM categories are eligible for the extension.  They provide a list which includes physical sciences, biological sciences, agricultural sciences, computer sciences, engineering and related.  However the lists do not include the Heath and social sciences areas.  USCIS will maintain the list and publish updates in the Federal Register whenever they make changes to the list
  3. As previously required, the employer for the STEM extension must by e-verify registered.
  4. Employers will also have to develop mentoring/training program for STEM extension students, and will have to have an evaluation system in place as well.
  5. Those who previously completed a STEM degree and are now completing a non-STEM degree can take advantage of the STEM extension.  However, this is true ONLY if the employment opportunity is directly related to the STEM area.  In addition, the school must be an accredited school
  6. USCIS is now also requiring certain requirement to protect US workers.  The job opportunity must offer the same duties, pay, benefits, etc. that are offered to similarly situated US workers.
  7. Only schools that are accredited by an organization recognized by the US Department of Education are eligible to provide the STEM extension to their students.  In addition USCIS may conduct on site evaluation at the work sites to ensure that a proper learning environment is being provided and the mentoring/training plan is in place and being followed.
  8. The proposed rule also ups the amount of time a STEM OPT student can be unemployed.  Under the old rules,  a student can be unemployed up to 90 days during the 12 month OPT period and an additional 30 days during the STEM extension. USCIS would raise the 30 day STEM Extension period of permissible unemployment to 60 days, giving a total of up to 150 days of unemployment.
  9. The proposed rule keeps the requirement for employers to update SEVIS with any changes of employment, and also indicates that USCIS will be allowing students to update some of the information themselves as well.
  10. Lastly, USCIS is including the cap-gap extension for the students in OPT status who file an H-1B application that is accepted by USCIS, but whose OPT expires prior to October 1, the first day the new H can begin.  The cap-gap extension will allow those students to receive an automatic extension of their OPT to October 1.

USCIS has indicated that the expect to finish the rule-making prior to the District Court’s deadline.  I hope the above helps you to understand the changes that will most likely be coming in the next couple of months.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

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