The U.S. Department of Homeland Security (DHS) released today the STEM OPT Regulations, titled Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students. The new regulation goes into effect May 10, 2016.
The regulations confirm that eligible F-1 students can extend OPT for two years with an E-Verify Employer. The regulations permit current F-1 STEM OPT students to take advantage of the new regulation. For F-1 STEM OPT students with pending STEM OPT requests filed under the old rule that are still pending on May 10, 2016, USCIS will issue a Request for Evidence (RFE). Students who currently hold an approved 17 month STEM extension can file for an additional 7 month extension if they meet the requirements for STEM OPT under the new rule.
DHS imposed mandatory reporting obligations for both the Employee and Employer including a requirement that Employers demonstrate that they are paying “comparable wages” to F-1 STEM OPT workers. Employers must submit a training plan that explains how the F-1 STEM OPT employment is related to the course of study. Employers must report termination of employment of STEM OPT students within 5 business days.
A positive aspect of this new regulation is that DHS confirmed that students can travel during cap gap and re-enter the U.S. in F-1 status to resume cap gap employment as long as USCIS has approved the H-1B petition. Of disappointment is that DHS did not include in the STEM-eligible occupation list clinical healthcare workers. Instead, DHS limited the eligible occupations to the Department of Education Classification of Instruction (CIP) categories of engineering (CIP Code 14), biological and biomedical sciences (CIP Code 26), mathematics and statistics (CIP Code 27), and physical sciences (CIP Code 40), or a related field.
SPS Immigration will continue to provide updated information on the new STEM OPT regulations as details emerge. If you have questions about the new STEM OPT regulation, please contact SPS Immigration.