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.
(1) General STEM OPT Eligibility Criteria
In general, to qualify for STEM OPT under the new regulations, students must demonstrate that they:
- Are working in a period of post-completion Optional Practical Training (OPT)
- Hold a Bachelor's degree or higher in an eligible STEM field from an SEVP-certified school that is currently accredited by an accrediting agency recognized by the U.S. Department of Education.*
- Be pursuing practical training through an employer that is enrolled in USCIS' E-Verify employment eligibility verification program
- Be within their initial 12-month period of post-completion OPT (not within their 60-day grace period)
- In coordination with their prospective employer, prepare and submit a Form I-983 Training Plan for STEM OPT Students to their Designated School Official (DSO)
*The new rule also permits students to use prior STEM degrees from a currently accredited SEVP-certified school to fulfill the degree requirement (bullet point 2 above) so long as the student (i) received their most recent non-STEM degree from a currently accredited SEVP-certified school; (ii) received their prior qualifying STEM degree (at the bachelor's level or higher) within 10 years of the request for the STEM OPT extension; and (iii) the qualifying STEM degree is on the Department of Homeland Security's (DHS) STEM Designated Degree Program List at the time the STEM OPT extension request is submitted (not at the time the degree was conferred).
(2) Application Procedures for Individuals with Existing or Pending STEM OPT on May 10, 2016
The new guidance also outlines the different procedures for F-1 students requesting the new 24 months of STEM OPT under the new rule. The process for requesting STEM OPT differs based on whether on the May 10, 2016 effective date of the new rule the student (1) already has an approved 17-months of STEM OPT under the old rule or (2) has a pending STEM OPT extension request.
(a) STEM OPT Extension Requests for Students with Existing 17-Month STEM OPT EADs
For students with existing 17-month STEM OPT Employment Authorization Documents (EADs) which continue to be valid as of May 10, 2016, as a transitional measure, from May 10, 2016, through August 8, 2016, certain students with such EADs will have a limited window in which to apply for an additional seven (7) months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional seven-month extension, the student must satisfy the following requirements.
- 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
- Students must meet the general requirements for 24-month STEM OPT listed in Section 1 above, including submission of a Form I-983 Training Plan for STEM OPT Students to the DSO prior to receiving a new certified I-20 to become eligible for the 24-month STEM OPT extension
- 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.
(b) STEM OPT Extension Applications that Remain Pending as of May 10, 2016
The guidance also explains that DHS will apply the requirements of the new 24-month STEM OPT Rule (outlined in Section 1 above) to applications pending on May 10, 2016. In order to determine eligibility under the new requirements, USCIS will issue Requests for Evidence (RFEs) to pending applications requesting documentation that will enable them to determine the student's eligibility for a 24-month STEM OPT extension. This includes a new I-20 certified by the DSO, recommending the 24-month STEM OPT extension. Under this new rule, students will be required to submit a Form I-983 Training Plan for STEM OPT Students to the DSO prior to receiving a new certified I-20 to become eligible for the 24-month STEM OPT extension. DHS has indicated that, during the transition process, it will accept and consider valid I-20s certified in response to an RFE after the initial submission of the STEM OPT extension request.
The guidance also notes that some students may prefer to withdraw a pending 17-month STEM OPT extension request and file a new application for a 24-month STEM OPT extension. However, D&S cautions students against withdrawing and refiling, particularly if their initial 12-months grant of OPT has expired and they are relying on the automatic 180-day extension of employment authorization based on the timely filing of their STEM EAD extension. Such students risk losing their employment authorization by withdrawing their initial STEM EAD application.
(3) Employer and Student Obligations for Completion of Form I-983 Training Plan for STEM OPT Students
As part of the new STEM OPT Rule, students are now required to submit a Form I-983 Training Plan for STEM OPT Students containing a training plan to their DSO prior to receiving a recommendation for a 24-month STEM OPT extension. The STEM OPT student and their prospective employer must work together to complete this form. STEM OPT students and their employers will become subject to the terms of the 24-month STEM OPT extension regulations and Form I-983 instructions, effective as of the start date requested for STEM OPT.
Students' and employers' obligations to provide certain information on the Form I-983 are outlined in greater details below:
(a) Student's Obligations for Completion of Form I-983
Students are responsible for facilitating the completion of Form I-983, submitting it with their STEM OPT application and returning it to their DSO, who will keep it in the student’s record. More specifically, the student is responsible for completing Section 1 of the form and to work with their prospective employer to complete Sections 2-6. Section 1 of the Form requires students to provide the following information:
- Name and email address
- Information about the SEVP-certified schools they have attended
- Information about their academic history
- Evaluation of Student Progress - the student must complete the first “Evaluation of Student Progress” within 12 months of the listed STEM OPT start date. At the end of the STEM OPT extension, a student must conduct a second, final self-assessment. Once the evaluations are complete, the student must collect signatures from their employer and return the form to the DSO, who will keep it in the student’s physical student record.
(b) Employer's Obligations for Completion of Form I-983
STEM OPT employers are responsible for completing Section 3 to Section 6 on the Form I-983 and must provide a signature on the STEM OPT student’s annual self-evaluation, also documented on the form. DHS has confirmed that employers may use existing training programs for evaluating the progress of STEM OPT students, so long as the existing training program meets DHS’s requirements as outlined on the Form I-983. STEM OPT students may participate in entrepreneurial ventures. However, they may not fill out their own Form I-983, Sections 3 to 6, nor act as their own employer for the purposes of the form. Sections 3 to 6 require employers to:
- Document specific information about the company and agree-to practical training
- Attest that the STEM OPT student will not replace a full-time or part-time temporary or permanent U.S. worker. The employer must also certify that that the terms and conditions of the STEM OPT opportunity are commensurate with similarly situated U.S. workers
- Assist student in preparing and executing a formal training plan that identifies learning objectives and a plan for achieving those objectives
- Officially certify the veracity of the information contained in the Form (note: the signatory must must have signatory authority for the employer and must affirm under penalty of perjury that the statements and information provided on the form are true and correct)
- Review the student's self-evaluations and sign to attest to accuracy
Students who are on, have filed, or will be eligible to file for STEM OPT between now and August 8, 2016 are encouraged to talk to their DSO and prospective employers to ensure they fully understanding the filing procedures that apply to them and comply with all necessary timing and documentary requirements.
D&S will continue to monitor the application of the new rule and will provide updates as new guidance becomes available.