By Attorney Farhad Sethna © 2016 All Rights Reserved
Last year, a group of aggrieved US citizens filed a complaint in federal court alleging that the Department of Labor had failed to meet certain requirements for publishing regulations implementing the “Optional Practical Training” for “STEM” graduates.
In an effort to settle this matter, the DOL, and the USCIS, working together formulated a new set of regulations and procedures to remedy this problem.
I have summarized certain salient points of the remedy as follows. More details will be forthcoming in future articles.
First, if you are not a STEM graduate (Science, Technology, Engineering or Mathematics), do not bother with the changes. These changes do not affect you. But, they may affect your friends who are STEM graduates, so please keep reading…
Second, everybody still gets the one-year of post-completion OPT. This is limited of course by any pre-completion OPT that might have been taken.
Third- The STEM OPT has been extended from the previous seventeen months to twenty four months. In conjunction with the one-year of OPT that all students receive, this means that STEM OPT graduates now have a huge three-year period of STEM OPT.
New form I-983:
Fourth- This extended period of STEM OPT comes at a price: the employer and the student must file a new form create by US Immigration & Customs Enforcement. This new form is the I-983, “Mentoring and Training Plan”.
What does the I-983 require?
The I-983 documents the employer’s commitment to provide actual training (hence the word “Training” in Optional Practical Training!) for the STEM graduate. The employer must list what the employee will be trained in, the tools and procedures for such training, and the expected outcome of such training. For those familiar with J-1 training programs, these requirements are very similar to the attestations the employer must provide in order to secure J-1 classification for trainee employees.
Process to apply for the STEM-OPT extension:
Fifth- both the employer and employee must complete and submit an attestation on the form I-983 at the end of the first year of the STEM OPT extension (the end of year two of OPT) and at the conclusion of the STEM OPT (the end of year three of OPT). That attestation must include the employee’s statement as to what he or she learned, whether the goals were achieved, any issues with the training, and any suggestions for improvement. Both the employer and the employee must sign off on this attestation.
The extensions for STEM OPT students that are currently pending will be treated as follows:
For students whose STEM OPT extension has been filed and pending as of May 10, 2016, the USCIS will send a request for evidence asking whether the student wishes to seek the additional seven months of OPT training under the new STEM regulations. If the student wants the additional 7-months of STEM OPT training, the student must send back a new I-20 endorsed by the designated school officer recommending the additional seven months of training, the form I-983, and a new form I-765 with the filing fee.
The 150-day rule:
However, in order to receive the additional seven months of training, the student must still have at least one hundred and fifty days of OPT remaining on the original seventeen months of STEM OPT (this means your STEM OPT should not expire for at least another five months). By simple computation, students on STEM OPT who have already used at least one year of STEM OPT will NOT be eligible for the seven-month extension. Please be cognizant of this limitation. Individuals who do not have at least the five months remaining on their current seventeen months STEM OPT cannot get the extra seven months of OPT under the present rule.
Deadlines to apply for the STEM-OPT extension:
There are deadlines to apply for the 7-month extension. Students should be aware of those deadlines and file a complete application packet at the earliest opportunity, due to what will undoubtedly be USCIS backlogs in issuing EAD’s.
Up to TWO lifetime STEM-OPT extensions:
Sixth – under the current STEM OPT rule, a student could receive only ONE period of STEM-OPT in a lifetime. Under the new STEM OPT rule, a student can receive upto TWO periods of STEM-OPT, so long as the second period is following a higher degree.
The cap-gap exemption remains in place for STEM OPT students who will be applying for an H-1b visa whenever the appropriate deadline comes up.
I will be continuing to keep up with USCIS and USICE (SEVIS)implementation of these new regulations. I’ll keep you posted with further details on this topic as they emerge. Stay tuned to this blog!
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.