USCIS Dials Back New Policy Limiting STEM OPT to In-House Employment

Earlier this year, USCIS updated its STEM OPT website with a more narrow interpretation of the STEM OPT regulations, indicating that all STEM OPT training must take place on-site at the employer’s place of business, thereby limiting an employer's ability to place STEM OPT workers at third-party worksites.  However, the STEM OPT website has once again been updated and USCIS appears to have scaled back this new interpretation. The most recent update removed the the pertinent language from the earlier update which suggested that off-site placement, including placement at a client site, was prohibited. The website now clarifies that employers are not prohibited from placing F-1 workers on STEM OPT at third-party worksites provided that a bona fide employer-employee relationship exists and all other STEM OPT training obligations are met.

More specifically, the updated guidance makes clear that, where an employer and the F-1 student working pursuant to STEM OPT have a valid employer-employee relationship, and that same employer provides the practical training experience and signs the STEM training plan, third party placement would not be prohibited under the STEM OPT regulations.

Employers and employees should continue to ensure all training and reporting obligations are met and F-1 students are reminded that status violations or a failure to maintain their status will result in the accrual of Unlawful Presence under USCIS’s new policy.

D&S Reminds STEM OPT Students that Window to File 7-Month Extension Closes on Monday, August 8, 2016

This past March, the Department of Homeland Security (DHS) released a new STEM OPT Rule providing for, among other things, an extended 24-month STEM OPT period, which is 7 months longer than the 17-month period available under the old rule.  

D&S reminds eligible students with existing 17-month STEM OPT Employment Authorization Documents (EADs) that the transitional period, during which such students can request an additional 7 months for STEM OPT, closes this coming Monday, August 8, 2016.

The transitional measure, which is available from May 10, 2016, through August 8, 2016, provides certain students with existing STEM OPT EADs a limited window in which to apply for an additional 7 months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional 7-month extension, the student must satisfy the following requirements. 

  1. Students must have at least 150 calendar days remaining on their current STEM OPT EAD at the time they file their new I-765 Application for Employment Authorization requesting the additional 7 months of STEM OPT
  2. Students must meet the general requirements for 24-month STEM OPT including submission of a Form I-983 Training Plan for STEM OPT Students to their DSO prior to receiving a new certified I-20 to become eligible for the 24-month STEM OPT extension
  3. Students must properly file their Form I-765 with applicable fees and supporting documents on or before August 8, 2016 and within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into SEVIS

If the extension is approved, the United States Citizenship and Immigration Service (USCIS) will issue a new EAD with a validity period that starts the day following the expiration of the prior 17-month STEM OPT EAD.

Guidance on new STEM OPT Filing Procedures

The Immigration & Customs Enforcement's (ICE) Student & Exchange Visitor Program (SEVP) website was updated to provide guidance on procedures for requesting the new 24-month STEM extension available under the new STEM OPT Rule scheduled to take effect on May 10, 2016. The website provides additional guidance for F-1 students whose applications are approved prior to May 10, 2016, or still pending as of May 10, 2016.  Additionally, the website contains the new Form I-983 Training Plan for STEM OPT Students that must be completed and submitted to the DSO prior to a grant of STEM OPT under the new rule.

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DHS Releases Final STEM OPT Rule

The U.S. Department of Homeland Security (DHS) released an advance draft of its final STEM OPT rule today, March 9, 2016, which will permit certain foreign students with degrees in STEM (Science, Technology, Engineering, and Math) fields to extend their Optional Practical Training (OPT) period by 24 months.  The will go into effect on May 10, 2016,  just in time to meet the date on which the District Court’s May 10th vacatur of the prior rule will occur and avoid a gap between the regulations, which could have had a significant impact on STEM students and employers. DHS released its preview copy of the final rule this morning and the official version of the rule is set to be published in the Federal Register on Friday, March 11, 2016.

We have provided an outline of the major provisions of the new rule, which also contains additional requirements and obligations for STEM OPT students and employers.

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District Court Judge Grants DHS's Request for Extension in STEM OPT Litigation

On Saturday, January 23, 2016, the U.S. District Court for the District of Columbia granted DHS's request for an extension of time to implement new STEM OPT regulations.  Originally, the Court stayed the invalidation of the current STEM OPT regulations and gave DHS until February 12, 2016, to implement the new rule.  On October 19, 2016, DHS published the new rule as part of the required notice and comment period. On December 22, 2016, DHS requested an extension of this deadline in light of the large amount of comments (over 50,000) the agency received during the notice period. This weekend, the District Court granted DHS's request for an extension to May 10, 2016, giving the agency almost three additional months to review the comments received during the notice period and publish a final rule.  

This extension comes as a welcome relief to STEM students given the uncertainty surrounding their status and employment authorization if DHS did not meet the original February deadline. DHS will hopefully provide clarification as to whether individuals with STEM extension requests pending at the time the new regulation takes effect will be eligible for a 17-month extension under the old regulation or a 24-month extension under the new regulation .  Students who will become eligible to file a STEM extension between now and May 10 should contact immigration counsel to discuss the timing of the filing prior to submitting their extension request.

D&S will continue to monitor the situation and provide updates as they become available.

D&S Update: STEM OPT Regulation

What's Happening

Several months ago, in August of 2015, the United States District Court for the District of Columbia vacated the Department of Homeland Security's (DHS) 2008 Science, Technology, Engineering and Mathematics (STEM) optional practical training (OPT) interim final rule finding that DHS failed to comply with the Administrative Procedure Act (APA) because it lacked sufficient good cause to bypass the requirements of advance notice and an opportunity for public comment. The district court the Court suspended the ruling from taking effect until February 12, 2016, to permit DHS time to promulgate a new rule and avoid the disruptive effect of vacatur on STEM employers and STEM students.

In response to the district court's order, DHS proposed a revision on October 19, 2015, providing only a 30-day public comment period, which is close to the minimum amount of time permitted. Still, DHS received more than 50,700 comments during the public comment period and, as a result, on December 22, 2015, the Department of Justice (DOJ) asked the court to “extend the stay of vacatur for approximately ninety (90) days, through May 10, 2016, providing 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.” On December 24, 2015, the district court gave the plaintiffs until January 11, 2016, to respond to DHS' request for an extension. 

What this Means

While the expectation is that the request will be granted in an effort to avoid the serious adverse impact this would have on students and employers,  if the court does not grant DHS' extension request, the current rule would expire effective February 13, 2016. If that happens, DHS has suggested that the agency may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule.   

D&S will continue to monitor this developing situation and provide updates as they become available.