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New rule extends US work authorization for certain foreign students

STEM image Professional

Important new US Department of Homeland Security (DHS) regulations allow F-1 foreign student visa holders with degrees from American universities in science, technology, engineering and math (STEM) to extend optional practical training (OPT) for 24 months beyond the 12-month period generally available to F-1 students on OPT. This 24-month extension effectively replaces the 17-month STEM OPT previously available. The new rule is effective May 10, 2016.

Requirements

To qualify:

  1. The employer must be enrolled in the voluntary e-verify program (see USCIS website)
  2. The student must have completed a bachelor’s, master’s or doctoral degree in a STEM field
  3. The job offered must directly relate to the student’s STEM degree

Transition rules

Pending STEM OPT extension applications adjudicated prior to May 10, 2016, will only be valid for 17 months. Beginning on May 10, US Citizenship and Immigration Services (USCIS) will issue Requests for Further Evidence asking students with pending STEM OPT extension applications whether they wish to amend their application from 17 to 24 months—perhaps one of the few times when lengthy government processing times will benefit students.

The new rule gives students with pending applications the option to withdraw now and file a new application with a 24-month request, but with the important reminder that a student can only file for a STEM OPT extension if post-completion OPT has not expired prior to government receipt of a new STEM OPT application.

Also, students who already have received a 17-month STEM EAD will be able to file for a 7-month extension between May 10, 2016 and August 8, 2016, so long as 150 days still exist before the expiration of their 17-month STEM EAD and they file within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record and other requirements are met, and they meet all other requirements for the 24-month STEM OPT extension.

Background

An August 2015 blog post offers background about F-1 OPT, STEM OPT extensions and the litigation that called into question the validity of the old 17-month rule.

We also addressed this issue in October 2015, when DHS first published the proposed rule to address the litigation.

The new rule was expressly written to resolve the defects found in the administrative procedures used to pass the old rule. In addition to reviving the STEM OPT extension in compliance with required rulemaking procedures, DHS took the opportunity make the validity period even longer. This is certainly not the result desired by those who challenged the original rule in an attempt to limit executive authority to grant US employment authorization to foreign nationals.

Further information

The complete text of the DHS notice of the new rule is available at the Federal Register’s website. Furthermore, DHS has opened a website that contains more information on the new STEM rule.

Dentons lawyers help employers obtain and maintain E-Verify status, as well as regular and STEM OPT employment authorization document applications, employment eligibility verification I-9 records and visas to authorize employment in the US and in the more than 50 countries around the world where Dentons has offices.

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New rule extends US work authorization for certain foreign students

Good news for US employers and foreign students—DHS STEM OPT extension rule published

STEM 2

On October 19, 2015, the US Department of Homeland Security published the much anticipated proposed new regulation authorizing the amendment of F-1 student visa regulations regarding employment authorization for foreign students. This will give much needed relief to US employers and the foreign students who work for them.

Since 2008, F-1 foreign student visa holders who graduate from US universities with a degree in science, technology, engineering or math (STEM) degrees are eligible to apply for 17 months of employment authorization in the US beyond the 12 months normally available. In addition, the 2008 regulatory change allowed F-1 students to apply for optional practical training (OPT) employment authorization up to 60 days after completion of the academic program. Finally, the 2008 change addressed the “Cap-Gap” program by making available additional employment authorization to F-1 OPT holders who are beneficiaries of H-1B temporary worker change of visa status petitions beginning on October 1 whose employment authorization would otherwise expire prior to September 30.

On August 12, 2015, the Washington, DC federal district court in Washington Alliance of Technology Workers v. USDHS found that the DHS violated the Administrative Procedures Act in 2008 when DHS first created the STEM OPT regulation without the notice and comment period required by law. The court stayed its ruling to February 12, 2016, to give DHS time to take corrective action to minimize “substantial hardship for foreign students and a major labor disruption for the technology sector.”

The court effectively gave DHS until December 14, 2015, to publish a final regulation to correct the error (with some exceptions, a proposed regulation must be published a minimum of 60 days prior to a final regulation). That means the DHS should have published the proposed regulation no later than October 15. Failure to do so increases the chance of disruption. That said, the case was appealed to the Court of Appeals for the District of Columbia Circuit and DHS attorneys will likely ask the appellate court to stay the lower court order and suspend the February deadline.

For the complete text of the DHS proposed rule.

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Good news for US employers and foreign students—DHS STEM OPT extension rule published