Starting May 10, New Work Rule for Foreign Students with STEM Degrees

Authored by Diane E. Metzger

Apr 29, 2016

The Department of Homeland Security’s final rule which provides a 24-month work extension to some foreign students with STEM degrees, goes into effect May 10.

Students from accredited U.S. universities applying for the new 24-Month Optional Practical Training STEM work authorization on or after May 10 must comply with new requirements. They include completing Form I-983, which sets forth a detailed training plan showing the practical skills and experience to be gained by the foreign worker through his or her employment in the U.S.

In addition to helping complete Form I-983 and agreeing to devote the time and resources necessary to develop the employee in accordance with the prescribed training plan, employers of such foreign workers must also complete annual performance evaluations and attest to the proper wage and working conditions of the foreign worker.

Stricter Timelines Apply for 7 Month “Upgrade” Requests:

The timelines for eligible workers to apply to “upgrade” a current 17-Month OPT STEM work authorization to 24 months (i.e., to add an additional 7), may be a very short window. To be eligible for the additional 7 months of OPT STEM work authorization, the foreign worker must:

• Currently be approved for 17-Month OPT STEM work authorization;
• Have 150 calendar days remaining on the 17-Month OPT STEM work authorization at the time the applicant files a request with the United Stated Citizenship and Immigration Services (USCIS) on Form I-765 seeking the additional 7 months of work authorization;
• File the extension request between May 10 and Aug. 8, 2016;
• File the extension request within 60 days after the foreign worker’s Designated School Official (DSO) enters the request for the extension in SEVIS; and
• Meet all other requirements imposed by the Final Rule.

The practical effect of the filing deadline (May 10 to Aug. 8) for the 7-month “upgrade” requests combined with the “150-day” requirement effectively means that:

• Not all individuals currently working on 17-Month OPT STEM work authorization will be eligible for the additional 7 months of work authorization; and
• The filing window for some eligible workers seeking an additional 7 months of work authorization may be much shorter (days to weeks) than the overall filing period of May 10 to Aug. 8.

Therefore, employers, foreign workers, and school officials alike will want to review each foreign worker’s current status to determine eligibility and any filing timeline constraints for seeking the additional 7 months of OPT STEM work authorization.

Students who have already applied for 17-Month OPT STEM work authorization under the prior rules and whose applications remain pending with USCIS as of May 10 will receive a Request for Evidence from USCIS requesting if the applicant would like to continue the application under the prior rules (i.e., proceed with the 17-month extension request), or if they would like to “convert” their application to a 24-month OPT STEM extension request, if eligible.

Requests to convert to a 24-month request must include evidence of compliance with the new final rule, including the submission of the Form I-983, completion of annual performance reviews, etc. Any 17-Month OPT STEM work authorization approved on or before May 9 will remain valid until the Employment Authorization Document expires, is terminated, or revoked.

Additional Employer Take-Aways:

In this year’s H-1B Visa Lottery, USCIS received more than 236,000 H-1B Cap applications for 85,000 available slots. As these new OPT STEM rules increase the work authorization for certain foreign students from 17 to 24 months, this will give employers whose applications were not selected in this year’s H-1B visa lottery additional time to retain these skilled workers as they await next year’s H-1B visa lottery or pursue other visa options for these employees.

Furthermore, as only employers who participate in USCIS’ E-Verify program are eligible to hire foreign workers granted OPT STEM work authorization, more employers may wish to enroll in E-Verify in order to tap into this skilled talent pool as the demand for H-1B visas continues to outsource the supply.

If you have any questions about hiring a foreign worker, E-Verify, or any other employment-based immigration issue, please contact Diane E. Metzger.

Page 1 of 11