DHS Issues New Rule Extending OPT Program to 36 Months

The Department of Homeland Security (DHS) issued the final OPT STEM (Science, Technology, Engineering, Math) extension rule that extends the Optional Practical Training (OPT) program for foreign STEM students to 36 months. The F-1 visa students who are enrolled in the STEM fields of study from accredited educational institutions in the United States will be allowed, beginning from May 10, 2016, to work for as long as three years under the Optional Practical Training (OPT). Work permit currently issued to a student before May 10 will remain valid until it expires and the student may apply for additional 7 months of OPT. The STEM students who are currently availing their extension of 17 months under OPT – after completion of their initial OPT of 12 months – and which will expire on May 10, 2016, or later, will be able to extend their OPT by further 7 months. The OPT graduates are exempt from payroll taxes and there is no wage requirements or visa caps on the program. The rule also includes the “Cap-Gap” relief, first introduced in a 2008 DHS regulation for any F-1 student with a timely filed H-1B petition and request for change of status.

However, for students who are not in STEM tracks of study, the OPT remains the same at 12 months.

In addition to offering significant benefits to STEM F-1 visa students, the rule imposes additional compliance requirements on STEM OPT workers and the U.S. employers who hire them.

• STEM OPT students and their employers, will be required to prepare a formal training plan that identifies learning objectives and plans for achieving those objectives. This information will be collected on Form I-983, Training Plan for STEM OPT students.
• STEM OPT students must inform their Designated School Official (DSO) about any name or address changes, and any changes to their employer’s name or address.
• Employers hiring STEM OPT workers will ensure the STEM OPT employee’s duties, hours and compensation are commensurate with similarly situated U.S. workers; the company has sufficient resources and trained personnel available to provide training in the specified opportunity; and the opportunity will help the student attain his or her training objectives.
• STEM extensions will only be available to students with degrees from schools accredited by an accrediting agency recognized by the U.S. Department of Education.
• Employers must notify the foreign student’s DSO within 5 business days after a foreign student terminates or leaves his or her employment before the end of the authorized OPT period.