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Update – STEM OPT & Cap Gap Rule Announcement

The Department of Homeland Security (“DHS”) has announced a final rule in relation to improving and expanding training opportunities for F-1 nonimmigrant students on Optional Practical Training (“OPT”). Specifically this rule allows certain students with degrees in the sciences, technology, engineering, and mathematics (“STEM”) disciplines who have pursued an initial twelve (12) month period of OPT, the option to extend for an additional twenty-four (24) months. This 24-month STEM extension replaces the 17-month STEM extension previously available but invalidated by the U.S. District Court for the District of Columbia, in the case of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security [U.S. District Court for the District of Columbia, Case No. 1:14-cv-00529, filed on March 28, 2014].

The final rule will amend the current regulations and OPT program to:

  • Replace the previous 17-month STEM OPT extension with a 24-month STEM extension. Students must continue to work for employers who participate in e-Verify to qualify;
  • Require students to have a STEM degree from an accredited U.S. college or university to be eligible for the 24 month STEM OPT extension;
  • Continue to require that the OPT be directly related to the student’s major area of study;
  • Allow a student to request a 24-month STEM OPT extension based upon his/her most recent degree or a degree earned earlier in his or her U.S. academic career;
  • Require a student requesting the 24-month STEM OPT extension to prepare a formal training plan with his/her employer and identify learning objectives and a plan for achieving those objectives during OPT;
  • Allow DHS to make site visits to employer locations in which STEM OPT students are employed to verify employer compliance;
  • Require a student to annually update the Designated School Official (“DSO”) on practical training progress;
  • Require students and employers to report any changes to DSOs on employment status or material changes or deviations from the formal training plan;
  • Require employers of STEM OPT students to attest that a student on STEM OPT will not replace a U.S. worker and that the employment opportunity offered to the student will be commensurate with similar situated U.S. workers; and
  • Re-authorize “Cap-Gap” relief for an OPT student with a timely filed H-1B petition and request for change of status to automatically extend F-1 visa status and work authorization until the start of the new fiscal year (October 1).

This rule will allow students to supplement their academic knowledge with valuable practical experience, while at the same time instituting safeguards to protect U.S. workers.

The new rule becomes effective May 10, 2016. Stay tuned for further updates and feel free to contact our office with questions as to its impact on OPT employment.

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