As HR Legalist has reported, the H-1B Cap has been met for FY2017. USCIS received over 236,000 petitions. From among this number were selected the congressionally mandated limit of 65,000 regular cap H-1B petitions, and an additional 20,000 for those with Master’s degrees. For F-1 student applicants who were unsuccessful in this year’s H-1B Cap lottery, and who are graduates in a STEM (Science, Technology, Engineering, or Mathematics) the chances of eventually being granted an H-1B visa are now much better.
Next Tuesday, May 10, 2016, eligible students may begin applying for a 24-month extension of their STEM Optional Practical Training (OPT). This is part of the new STEM OPT program announced by the Department of Homeland Security (DHS) in March of this year. The 24-month extension replaces the 17-month STEM OPT extension (on top of the 12 months of post-completion OPT available for all F-1 students). The 24-month STEM OPT extension is the most noteworthy change in the new Final Rule, but there are several other changes in the OPT program that will also go into effect next week:
- The rule permits an F-1 student participating in a 12-month period of post-completion OPT based on a non-STEM degree to use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, as long as both degrees were received from currently accredited educational institutions. The practical training opportunity must be directly related to the previously obtained STEM degree. So, for example, if a foreign student is on post-completion OPT for an MBA she earned, but has a U.S. bachelor’s degree in Computer Science, then that student can request 24 months of additional OPT based on her previous STEM degree, as long as the work is related to the previous degree, i.e. Computer Science.
- The Final Rule introduces a new written Training Plan for STEM OPT students. Similar to the J-1 Exchange Visitor Form DS-2019, the new Form I-983 Training Plan for STEM OPT Students requires the student and his or her employer to draft a written description of how the student’s employment will enhance the student’s education, what are the specific, learning related goals and objectives of the proposed employment, how supervision will be conducted, and how the student’s work will be assessed. The form also contains a mid-point and final evaluation of student progress.
- Employer Attestations. As part of completing the Form I-983 Training Plan, the employer must certify that:
a. It has sufficient resources and trained personnel available to provide appropriate training in connection with the employment opportunity;
b. the student will not replace a full- or part-time, temporary or permanent U.S. worker; and
c. the proposed work will help the student attain his or her training objectives.
- Reporting Requirements. In addition to requiring the mid-point, and final evaluation of student progress, the new Final Rule requires students and employers to report to the Designated School Official (DSO) changes in the student’s employment, including termination or departure from the employer.
- Site Visits. At its discretion, DHS may conduct employer site visits at worksites to verify whether employers are meeting program requirements, including the ability to provide “structured and work-based learning experiences.” DHS will provide notice to the employer 48 hours before any site visit unless a “complaint or other evidence of noncompliance” with STEM OPT regulations triggers an unannounced visit.
- Limitations on Unemployment. The program in effect before the Final Rule allowed a student to be unemployed up to 90 days during his or her initial period of post-completion OPT, and up to an additional 30 days (for a total of 120 days) for a student who received a 17-month STEM OPT extension. This rule retains the 90-day maximum period of unemployment during the initial period of post- completion OPT but allows an additional 60 days (for a total of 150 days) for a student who obtains a 24-month STEM OPT extension.
In addition to these notable changes in the STEM OPT program, there are several requirements that have not changed from the STEM OPT program that has been in effect. These include the Cap-Gap extension provision, under which DHS temporarily extends an F-1 student’s duration of status and any current employment authorization if the student is the beneficiary of a timely filed H-1B petition and change- of-status request pending with or approved by USCIS. The Cap-Gap extension extends the OPT period until the beginning of the new fiscal year (i.e., October 1 of the fiscal year for which the H-1B status is being requested).
The new and expanded STEM OPT program is a welcome benefit for international students in STEM fields, as well as employers facing the dual problem of insufficient numbers of U.S. STEM graduates and an artificially low number of H-1B Cap visas available each year. The program is also typically complex, requiring several new actions by students and employers. The program is not designed to be a long term cure for the artificially low numbers of H-1B visas available in a given year, nor does it solve the problem U.S. employers have finding U.S. workers for STEM positions. But absent congressional action to reform the nation’s immigration system, the 24-month extension of STEM OPT is a welcome boost. As always, we urge our readers to consult immigration counsel to learn more about eligibility for the benefits of the new STEM OPT program.