Immigration and firm news


On May 10, 2016 a new final DHS regulation will go into effect for foreign students with or desiring  STEM Optional Practical Training (OPT).  The new rule, issued March 11, 2016, includes a combination of new benefits as well as restrictions and clarifications for U.S. college graduates. In addition, ICE, the agency that monitors foreign students, has released a new STEM-OPT website hub. Unfortunately, the new rule stifles opportunities for entrepreneurial self-starters creating their own companies unless they are an employee. (See below).  The rule also clarifies the H-1B cap gap program. The final rule includes a rather lengthy preamble discussing the objectives of the new rule and many of the comments received during the notice and comment period in 2015. The preamble is worth a read. There are two key dates for students who already have general OPT or the first 17-month extension of STEM OPT under the old 2008 rule:  May 9, 2016 is the last day to file for the initial/old 17-month extension.  The new 24-month extension goes into effect on May 10, 2016. The other key date is the period of May 10, 2016 through August 8, 2016, when students already on the first STEM OPT can apply for their remaining 7 months of STEM OPT under the new rule.  It goes without saying that students should work closely with their university Designated Student Officers (DSO)s. This post covers a general summary of the new rule and a few FAQs for students, employers and DSOs about implementation.

Benefits under the new STEM OPT Rule

  1.  STEM OPT extensions will increase from 17 months to 24 months on top of the standard one-year OPT all US graduates can have with degrees in any field.  This will allow graduating foreign students with qualifying U.S. STEM degrees to stay longer in the U.S. to get work experience directly related to their studies. It has the added benefit of allowing more than one crack at the ridiculous H-1B lottery situation that gets worse every year. (Filing season is approaching on April 1, 2016 for an anticipated filing period of one week when more than 200,000 applicants are expected to seek 85,000 possible H-1B slots.) STEM degrees must be obtained at accredited US universities and colleges. The extra time in OPT status could allow for STEM grads to build their careers so that they gradually meet the requirements for some of the other visa categories, such as EB-2 national interest waivers (which this Seattle immigration law firm likes to handle).  (See number 3 below.)
  2. The new rule allows graduates who previously graduated from a US accredited institution with a qualifying STEM degree to get STEM OPT.  This helps recent non-STEM grads whose one-year non-STEM OPT will soon be expiring to apply for STEM OPT based on an earlier STEM degree.
  3. The new rule allows STEM grads with multiple STEM degrees to get even more STEM OPT (e.g., a US bachelors STEM degree followed by a masters STEM degree would permit a student to get two rounds of STEM OPT). This benefits students who wish to complete longer term complex research and development projects.

Oversight and restrictions

The new STEM OPT rule has the following restrictions that are meant to tighten up the program, ensure foreign students are truly gaining experience relevant to their studies, and to protect US workers from cheaply paid foreign students competing with or allegedly taking their jobs. Clearly, the program now imposes much greater liabilities on employers, which could lead many small employers to be turned off by the program even though small employers are the fastest growing segment of job growth in the economy. In addition, the new rules add substantial burdens on university DSOs as well as employers.

  1.  STEM OPT employers now have to develop individualized training plans developed by the employer and student. In fact, it is a shared responsibility.  Employers and students will be required to complete a new Form I-983.  As noted above, student entrepreneurs must be employees and cannot be employers for purpose of this form; nor can they sign as an employer.
  2. The student will be required to perform an annual self-evaluation of progress signed by the employer and filed annually with the student’s university DSO.
  3. “Material changes” to the training plan or the student’s employment must be reported to the DSO, including but not limited to:
    • Any change of the employer’s Employer Identification Number, (i.e., the company’s Federal Tax ID number) resulting from a change in the employer’s ownership or structure.
    • Any reduction in student compensation that is not tied to a reduction in hours worked.
    • Any significant decrease in hours per week that a student engages in a STEM training opportunity.
    • Changes to the employer’s commitments or student’s learning objectives as documented on the Form I-983.
  4. The employer must attest that the student will not replace a full- or part-time temporary or permanent US worker.  (US workers include US citizens, green card holders, asylees and refugees.)
  5. The employer must attest that the employer will offer the same terms, conditions, hours and compensation to the STEM OPT student offered to similarly situated US workers.
  6. Employers must authorize ICE site visits to verify training plans, compensation and non-displacement attestations that employers are required to sign.
  7. Employers participating in STEM OPT extensions must continue to participate in E-Verify.

H-1B Cap-Gap Clarifications

In 2008, DHS issued a regulation governing what happens to student graduates whose OPT/STEM OPT expires before the approval date of first time cap-subject H-1B applicants where the work is authorized to start on October 1 of every year. Many students on OPT or STEM OPT run out of OPT time before H-1B filing season starts in April 2016, before H’s are approved or before H-1B work can begin on October 1.  That earlier rule permits students on OPT who are in current OPT status when they file for H status in April to have an automatic extension of OPT until September 30 or the rejection, denial, revocation, or withdrawal of H-1 change of status. Students cannot have violated their terms and conditions of student status.

Note, the new cap-gap rules for the most part keep the old rule in place except that students must have filed for change of status, not consular processing.  The cap-gap rules (and the old STEM OPT rule) are currently the topic of a lawsuit that were discussed in a prior blog post.  Since that suit, the court granted DHS’ motion to continue the vacateur order until May 10, 2016, coinciding with the start date of this new regulation, which theoretically should comply with the notice and comment rules that were the subject of the plaintiff’s contention – that the 2008 rules did not comply with the APA notice and comment rules.  The court, in Washington Alliance of Technology Workers v. DHS found that, in light of the “unexpected and unprecedented” 50,500 public comments received in response to DHS’s Notice of Proposed Rulemaking on October 19, 2015, “extraordinary circumstances” existed that warranted modifying the court’s previous order to vacate the 2008 rules extended to May 10, 2016.  Stay tuned for updates on this case.



Q: I already have STEM OPT and I am applying for an extension of more STEM OPT time.  Am I allowed to continue working while my extension request is pending?

A: Yes.  There is an 180-day automatic extension of OPT while the request is pending if it was timely filed.  Authorization to work continues either for 180 days, day of grant and approved period, or date of denial, whichever is earlier.

Q: If I have OPT and a pending H-1B petition to start work on October 1, can I work?

A: One can only continue working under the cap gap rule if the student was in valid OPT status on April 1 (or the one week of the H-1B filing period in April), and the student filed for a change of status, not consular processing.  Cap gap OPT expires on September 30.

Q: How do I know if my degree is a qualifying STEM degree?

A: ICE has expanded the list of qualifying degrees from qualifying accredited US institutions.  Check here periodically.

Q: How much STEM OPT can a student receive?

A: First, all students can apply for one year of general OPT.  Graduates with qualifying US STEM degrees can get an additional 24 months OPT for a total of 3 years OPT.  However, students can have a lifetime of two 24-month periods of STEM OPT for two different STEM degrees. An example would be a person with a BS degree in a STEM field (1 year general OPT followed by 24 months of STEM OPT)  followed by an MS degree in a STEM field followed 1 year general OPT followed by another 24 months of STEM OPT for a total of six conceivable years of OPT.

Q: What if I recently graduated with a non-STEM degree.  Can I still get STEM OPT?

A: Yes, if the student had a prior qualifying US STEM degree obtained within the last 10 years.  The STEM OPT job duties/training, however, will have to relate to the earlier STEM degree, not the more recent non-STEM degree.

Q: What are the logistics of applying for STEM OPT?

A: The student works with the potential employer to create the training plan and complete form I-983. The form is then given to the university DSO for review. The DSO also issues an I-20 authorizing the STEM OPT and helps the student apply for the EAD (Form I765 Work Authorization card).

Employer FAQs

Q: Can any employer participate in STEM OPT?

A: Theoretically, yes. However, employers will need to decide whether to assume the responsibilities and liabilities of the STEM OPT program.  The employer must provide a work opportunity directly related to the student’s degree field; the employer must provide a training plan and supervision of the employee’s work; with the employee, the employer must evaluate the student’s work; and the employer must pay the student similar wages and working conditions as that offered to other US workers doing similar work. The employer cannot replace a US worker with the STEM OPT student. Finally, the employer must be willing to participate in E-Verify and be willing to be audited by ICE.

Q: Do I need an attorney to help my company participate in this program?

A: Not necessarily, but it is advisable to consult an attorney at least for the first student you plan to hire in order to become familiar with the program, training plan requirements, attestations required on the forms, student evaluations required, and training about when to report material changes. Someone in the company should be designated to be in charge of the program and should receive training from either an attorney, or other resources such as the student’s university DSO, ICE’s STEM OPT HUB, or

Q: What is required in the training plan and evaluation?

A: The training plan is developed with the student on Form I-983. The form requires input about:

  • How the practical training directly relates to the student’s qualifying STEM degree.
  • The specific goals of the STEM practical training opportunity.
  • How those goals will be achieved through the work-based learning opportunity with the employer, including details of the knowledge, skills or techniques to be imparted to the STEM OPT student.
  • The performance evaluation process.
  • The methods of oversight and supervision of the STEM OPT student.

The formal training plan documented in the Form I-983 must also establish that:

  • The employer has sufficient resources and personnel available to provide appropriate training in connection with the specified opportunity and is prepared to implement the work-based learning opportunity at the locations identified.
  • The STEM OPT student will not replace a full-time or part-time, temporary or permanent U.S. worker.
  • The opportunity assists the student in attaining their training goals.
  • The duties, hours and compensation associated with the student’s STEM OPT position are commensurate with those provided to the employer’s similarly situated U.S. workers in the area of employment.

If the employer does not employ and has not recently employed more than two similarly situated U.S. workers, the training plan must include the employer’s affirmation of commensurate terms and conditions for the student’s position with those of employment for other similarly situated U.S. workers in the area of employment.

Material changes to the training plan, wages, hours, working conditions, job site or other major factors affecting the students’ work must be reported on a new I-983 and sent to the student’s DSO. With the employer’s participation, the student reports  the self-evaluation annually from first date of OPT.

FAQs for DSOs

Q: This program sounds like a lot of work for DSOs. Will it substantially increase my workload?

A: Oh, yeah! Assuming there are enough employers out there willing to participate in the program given the employer liabilities.

Q: What should I be doing now?

A: Notifying students of the new rule, getting applications ready either for the last group of 17-month STEM OPT extensions that must be filed by May 9, 2016; notifying students who already have 17-month STEM OPT to get ready to file for their 7-month extensions between May 10 and August 8, 2016.  Become familiar with the I-983 training plan requirements and self-evaluation; setting up systems for follow up, notifications to students and employers and collection of material change notices and self-evaluations.

For more information or assistance with training plans and other employer obligations or student questions, please contact the Law Office of Bonnie Stern Wasser at (206)282-2279.