STEM OPT Rulemaking

April 14, 2016

 

Shortlink to this page: www.nafsa.org/stemoptrule

The final 24-month STEM OPT rule was published in the Federal Register at 81 Fed. Reg. 13039 (March 11, 2016).

  • The new 24-month STEM OPT rule is effective Tuesday, May 10, 2016
    • All STEM OPT applications received by USCIS on and after May 10, 2016 must include a Form I-20 with a 24-month STEM OPT recommendation and conform in all other ways to the 24-month STEM OPT rule, or the application will be denied. See the discussion below on May 10 Transition Rules for limited exceptions.
  • The legacy 17-month STEM OPT rule was effective through May 9, 2016, and its parameters will continue to govern students on an approved 17-month STEM OPT extension who elect not to extend that STEM OPT for an additional seven months under the 24-month STEM OPT rule.

Resources

17 to 24-month STEM OPT Transition Rules

The following groups of students are most immediately affected by the transition from the current rule to the new rule, i.e., they must make decisions or take actions to preserve their eligibility for STEM OPT benefits.

  • Students who have already applied to USCIS for a 17-month STEM OPT extension but whose applications may still be pending on May 10
  • Students who already have an approved 17-month STEM OPT extension, but are interested in a possible 7-month extension under the new rule
  • Students whose standard 12-month OPT will expire before May 10, 2016

17-month STEM OPT applications still pending on May 10, 2016

Beginning May 10, 2016, USCIS will adjudicate all STEM OPT applications under the standards of the new final rule. USCIS will send an RFE (request for evidence) to any applicant who filed for a 17-month STEM OPT extension under the current rule and whose application is still pending as of May 10, 2016. The RFE will “request documentation that will establish that the student is eligible for a 24-month OPT extension” under the new final rule, including a new Form I-20 endorsed on or after May 10, 2016, indicating that the Designated School Official (DSO) recommends the student for a 24-month OPT extension, a completed and signed Form I-983 Mentoring and Training Plan, and any other documentation to establish that the requirements for a STEM OPT extension under the standards of the new final rule have been met. Note: this is different from the proposed rule, which would have adjudicated applications received before May 10 under the 17-month rules.

17-month STEM OPT already approved before May 10, 2016.

Students who have a 17-month EAD that was approved under the current 17-month rule will not have their 17 months automatically extended to 24 months. A student whose 17-month STEM OPT was approved before May 10, 2016 has two choices:

  • Option 1: Continue in the 17-month period until it ends, without applying for a 7-month extension under the 24-month rule. If the student chooses this option, the 17-month STEM OPT EAD "remains valid until such Form I-766 expires or is terminated or revoked under 8 CFR 274a.14, and the student, the student's employer, and the student's DSO must continue to abide by all the terms and conditions that were in effect when the Form I-766 was issued." [8 CFR 214.16(c)(1)]
  • Option 2: Request the balance of the modified extension (i.e., the extra 7 months). Not all students with approved 17-month STEM OPT will qualify. To be eligible for the 7-month extension, however, the student must meet all of the following conditions:

  1. Properly file a Form I-765, with USCIS on or after May 10, 2016 and on or before August 8, 2016, and within 60 days of the date the DSO enters the recommendation for the 24-month OPT extension into the student’s SEVIS record, with applicable fees and supporting documentation, including a new Form I-20 endorsed on or after May 10, 2016, indicating that the Designated School Official (DSO) recommends the student for a 24-month OPT extension, a completed and signed Form I-983 Mentoring and Training Plan, and any other documentation to establish that the requirements for a STEM OPT extension under the standards of the new final rule have been met;
  2. Have at least 150 calendar days remaining prior to the end of his or her 17-month OPT extension at the time the Form I-765, is properly filed - SEVP and USCIS have determined that students whose 17-month STEM OPT end date is before October 7, 2016, cannot mathematically meet the 150-day requirement; and
  3. Meet all the requirements for the 24-month OPT extension under the new final rule, except the requirement that the student must be in a valid period of standard 12-month post-completion OPT at the time of filing.

A student who cannot meet each of these conditions, for example, a student who will not have at least 150 days of 17-month STEM OPT remaining at the time a 7-month extension would be received by USCIS, or who does not file a 7-month extension application during the May 10 – August 8, 2016 filing period, is not eligible for the benefit.

A student who does qualify for and apply for the 7-month extension becomes subject to the 24-month STEM OPT compliance rules starting on the date the application is filed with USCIS [8 CFR 214.16(c)(3)]:

“Upon proper filing of the application for the additional 7-month OPT extension, the student, the student’s employer as identified in the student’s completed Form I–983 and the student’s DSO are subject to all requirements of the 24- month OPT extension period, except for the 150-day unemployment limit described in 8 CFR 214.2(f)(10)(ii)(E), which applies to students only upon approval of the additional 7-month OPT extension. Subsequent to any denial of the application for the additional 7-month extension, the student, the student’s employer, and the student’s DSO must abide by all the terms and conditions that were in effect when the 17-month OPT extension was issued throughout the remaining validity period of the 17-month OPT extension.”

Whether or not the 17-month STEM OPT is extended for 7 months, it will count as "one" period of STEM OPT, after which the student will have only one more lifetime period of STEM OPT eligibility under the new rule, after completing a higher degree.

Students whose standard 12-month OPT will expire before May 10

Students whose standard 12-month OPT expired before May 10, 2016 had to file for a 17-month STEM OPT extension on or before their OPT expiration date, and wait for an RFE. The preamble to the final rule advised such students to make sure to apply for the 17-month STEM OPT extension before the end of their 12 months of standard post-completion OPT:

"This rule, like the 2008 IFR, does not allow students to apply for STEM OPT extensions during the 60-day grace period following an initial 12-month period of post- completion OPT. The current requirement to properly file the request for a STEM OPT extension prior to the end of the initial OPT period allows sufficient time for the F-1 student to apply for the extension and is administratively convenient as it ensures continuing employment authorization during the transition from the initial OPT period to the STEM OPT period. Accordingly, if a student anticipates that he or she will enter the 60-day grace period before May the student should not wait to apply. Such a student should apply for the 17-month STEM OPT extension before his or her initial OPT period expires."

Here is the text of the new 8 CFR 214.2(f)(16) transition provision, effective May 10, 2016:

8 CFR 214.16

(a) STEM OPT Applications for Employment Authorization that are filed prior to, and remain pending on May 10, 2016.

(1) On or after May 10, 2016, USCIS will issue Requests for evidence (RFEs) to students whose applications for a 17-month OPT extension under the rule issued at 73 FR 18944 are still pending. The RFEs will request documentation that will establish that the student is eligible for a 24-month OPT extension under 8 CFR 214.2(f)(10)(ii)(C), including a Form I-20 endorsed on or after May 10, 2016, indicating that the Designated School Official (DSO) recommends the student for a 24-month OPT extension and that the requirements for such an extension have been met. Submission of the Form I-20 in response to an RFE issued under 8 CFR 214.16(a) will be regarded as fulfilling the requirement in 8 CFR 214.2(f)(11)(i) that a student must initiate the OPT application process by requesting a recommendation for OPT by his or her DSO.

(2) Forms I-765 that are filed prior to, and remain pending on, May 10, 2016, will be regarded as being covered by 8 CFR 214.2(f)(11)(i)(C) and 8 CFR 274a.12(b)(6)(iv).

(b) STEM OPT Applications for Employment Authorization that are filed and approved before May 10, 2016. A student whose Form I-765 is filed and approved prior to May 10, 2016 will be issued an Employment Authorization Document, Form I-766, that is valid for 17 months even if the student requested a 24-month OPT extension.

(c) Students with 17-Month STEM OPT employment authorization.

(1) Subject to paragraph (c)(3) of this section, any Employment Authorization Document, Form I-766, indicating a 17-month OPT extension under the rule issued at 73 FR 18944 that has been issued and is valid prior to May 10, 2016 remains valid until such Form I-766 expires or is terminated or revoked under 8 CFR 274a.14, and the student, the student’s employer, and the student’s DSO must continue to abide by all the terms and conditions that were in effect when the Form I-766 was issued.

(2) Subject to the requirements in paragraphs (c)(2)(i) through (iii) of this section, F-1 students with a 17-month OPT extension under the rule issued at 73 FR 18944 are eligible to apply for an additional 7-month period of OPT. The F-1 student applying for the additional 7- month period of OPT must:

(i) Properly file a Form I-765, with USCIS on or after May 10, 2016 and on or before August 8, 2016, and within 60 days of the date the DSO enters the recommendation for the 24- month OPT extension into the student’s SEVIS record, with applicable fees and supporting documentation, as described in the form instructions;

(ii) Have at least 150 calendar days remaining prior to the end of his or her 17-month OPT extension at the time the Form I-765, is properly filed; and

 (iii) Meet all the requirements for the 24-month OPT extension as described in 8 CFR 214.2(f)(10)(ii)(C), except the requirement that the student must be in a valid period of post- completion OPT authorized under 8 CFR 274a.12(c)(3)(i)(B).

(3) Students on a 17-month OPT extension who apply for and are granted an additional 7- month period of OPT shall be considered to be in a period of 24-month OPT extension, as authorized under 8 CFR 214.2(f)(10)(ii)(C). Upon proper filing of the application for the additional 7-month OPT extension, the student, the student’s employer as identified in the student’s completed Form I–983 and the student’s DSO are subject to all requirements of the 24- month OPT extension period, except for the 150-day unemployment limit described in 8 CFR 214.2(f)(10)(ii)(E), which applies to students only upon approval of the additional 7-month OPT extension. Subsequent to any denial of the application for the additional 7-month extension, the student, the student’s employer, and the student’s DSO must abide by all the terms and conditions that were in effect when the 17-month OPT extension was issued throughout the remaining validity period of the 17-month OPT extension.

SEVIS Readiness

Although the final STEM OPT rule became effective May 10, 2016, SEVIS itself did not contain functionality for all of the new rule's provisions until May 13, 2016, with SEVIS Release 6.26. That release:

  • Set the STEM OPT extension to 24 months
  • Displays the Extend button under the Command menu of the OPT Employment for all individuals on post-completion OPT (not just for individuals whose major field of study CIP code is on the DHS STEM Degree List). This this will allow DSOs to recommend a STEM OPT extension for someone with a prior STEM degree whose current OPT is in a non-STEM field.
  • Allows DSOs to convert a 17-month STEM OPT recommendation to a 24-month recommendation in response to a USCIS RFE issued for 17-month STEM OPT applications that were still pending as of May 10, 2016.
  • Allows DSOs to recommend a 7-month extension of STEM OPT for eligible students who had already been approved for a 17-month STEM OPT extension.

SEVIS Release 6.26 will not contain fields related to the I-983 Training Plan or fields to collect information regarding prior degrees, but future releases of SEVIS will. In the meantime, documentation of meeting those conditions of 24-month STEM OPT eligibility should be developed and retained off-line by schools, students, and employers.

Specific Workarounds from SEVP

SEVP described the following workarounds in Broadcast Message 1605-01: Revised Guidance for SEVIS Workarounds and STEM OPT Transition (May 5, 2016). The information from that Broadcast Message has been posted on SEVP's STEM OPT Hub as well.

New 24-month STEM OPT requests

  • DSOs will be able to use the current functionality to recommend extensions of OPT. SEVIS will automatically calculate the 24-month OPT end date.
  • For cases where the filing deadline is close to May 10, 2016, DSOs can file the STEM extension under the existing 17 month rules. USCIS will send RFEs for STEM extensions that are pending on May 10, 2016. DSOs will be able to convert the case after USCIS issues the RFE.
  • DSOs must enter the following information into the “Explain how employment is related to student’s course of study” field:

"I have reviewed the Form I-983. It is completed, signed, and addresses all program requirements."

  • If the recommendation is based on a prior degree, DSOs must enter the following information into the “Explain how employment is related to student’s course of study” field:

"Extension based on prior STEM degree: (Enter information on: qualifying major, qualifying degree level, Classification of Instructional Program (CIP) code, date of degree, school awarding degree, school location, awarding school code and class of admission at time of degree.)"

Note: New applications received by USCIS on May 10, 2016, must meet the new requirements.

17-month STEM extensions pending on May 10, 2016

  • USCIS will issue an RFE asking for a Form I-20, “Certificate for Eligibility for Nonimmigrant Student Status,” with the 24 month STEM recommendation.
  • After receiving the RFE, the DSO should convert the OPT recommendation from a 17-month to a 24-month STEM recommendation using the functionality in SEVIS Release 6.26 deployed on May 13, 2016.
  • DSOs must enter the following information into the “Explain how employment is related to student’s course of study” field:

"I have reviewed the Form I-983. It is completed, signed, and addresses all program requirements."

Note: A completed Form I-983 and a USCIS-issued RFE are required before converting the recommendation from a 17-month OPT extension to a 24-month OPT extension.

7-month extension of 17-month STEM OPT approved before May 10, 2016

  • The filing period for the 7-month extension of already-approved 17-month STEM OPT is May 10, 2016, through Aug. 8, 2016. Some students do not have the full application period. Students must have at least 150 days of approved STEM OPT left on the day that USCIS receives their Form I-765, “Application for Employment Authorization.” Once the functionality is available, DSOs must recommend the seven month extension in SEVIS. SEVP and USCIS have determined that students whose 17-month STEM OPT end date is before October 7, 2016, cannot mathematically meet the 150-day requirement. The functionality will therefore only appear for students whose 17-month STEM OPT expires on and after October 7, 2016.
  • DSOs must enter the following information into the “Explain how employment is related to student’s course of study” field:

"I have reviewed the Form I-983. It is completed, signed, and addresses all program requirements."

Special instructions for students whose filing deadline for the seven-month STEM extension is before May 23, 2016

  • Students should file the Form I-765 with USCIS without the Form I-20, but include a statement that indicates the following:

"Due to new regulations, I must apply for the seven-month extension of my STEM OPT before SEVIS supports it. I will provide a Form I 20 with the extension recommendation after USCIS requests it."

Limited STEM OPT workaround for some students - Filing I-765 with no I-20

SEVP and USCIS cooperated to develop special instructions that will allow a very limited number of students to file a Form I-765 without an accompanying Form I-20 bearing the 24-month STEM OPT recommendation. Only two groups of students may take advantage of this special workaround instruction:

  1. Students who will base their eligibility for a 24-month STEM OPT extension on a prior STEM degree, whose standard post-completion OPT expires on or after May 10, 2016 but before May 23, 2016.
  2. Students with a 17-month STEM OPT approved before May 10, 2016, who wish to apply for the 7-month extension, but whose 17-month STEM OPT EAD expires before May 23.

Students who qualify for the special instruction should file the Form I-765 with USCIS, before their current period of post-completion or 17-month STEM OPT expires, without the Form I-20, but with a cover letter that includes the following statement:

"Due to new regulations, I must apply for the 24-month STEM extension of my OPT before SEVIS supports it. I am eligible based on a prior degree. I will provide a Form I-20 with the extension recommendation after USCIS requests it."

These applications cannot arrive at USCIS before May 10, 2016. Students should wait to send the Form I-20 to USCIS until after USCIS requests it in an RFE. Students eligible under these special instructions will still have to ensure that USCIS receives their Form I-765 and filing fee before their current period of OPT expires.

Duration of STEM OPT

The OPT extension period for STEM OPT students is increased to 24 months for applications adjudicated on and after the May 10, 2016 effective date of the new final rule. It is currently 17 months.

The 24-month extension, when combined with the period of standard post-completion OPT that must precede an application for STEM OPT, allows qualifying STEM students up to 36 months of post-completion optional practical training.

After completing another qualifying degree at a higher degree level than the first qualifying degree and receiving another period of standard post-completion OPT based on that degree, a student would be eligible for one more 24-month STEM OPT extension. A student is limited to two STEM OPT extensions during his or her lifetime.

General Filing Deadlines

Under the 24-month STEM OPT rule, a student must properly file a STEM OPT extension request within these general deadlines:

  • On or after the May 10, 2016 effective date of the final rule, supported by a 24-month STEM OPT recommendation reflected in SEVIS and on the Form I-20.
    • STEM OPT applications received by USCIS on and after May 10, 2016 must be supported by a 24-month STEM OPT recommendation on the Form I-20, or the application will be denied unless the applicant qualifies for one of the limited exceptions to this rule. SEVIS functionality to produce a 24-month STEM OPT application, however, will not be available until SEVIS 6.26 is fully implemented on May 14, 2016. Applications that USCIS receives on or after May 10, 2016 that contain an I-20 with a 17-month STEM OPT recommendation rather than a 24-month STEM OPT recommendation will be denied.
     
  • Before the expiration of the student's standard 12-month OPT, but no sooner than 90 days before that expiration date; and
  • No later than 60 days from the date the DSO recommended the benefit in SEVIS
    • Under the prior 17-month rule, USCIS had to receive the application within 30 days of the DSO recommendation.
    • This 60-day period applies only to the STEM OPT benefit filed under the new rule on or after May 10, 2016.
    • An application for standard 12-month post-completion OPT will still have to be properly filed with USCIS within 30 days of the DSO's recommendation in SEVIS, as the rules for 12-month OPT have not been changed.
     

Like the legacy 17-month STEM OPT rule, the 24-month rule also allows a student who files a timely STEM OPT extension application to continue working while the STEM OPT application is pending, for up to 180 days beyond the expiration of the student's standard post-completion OPT. All work done during this 180-day time period is considered STEM OPT extension time that counts towards the 24-month total.

See the separate rules under "transitions" above regarding the August 8, 2016 deadline for students who are currently authorized for a 17-month period of STEM OPT under the 17-month rule.

Students who have not yet completed thesis or dissertation still eligible for STEM OPT

To be eligible to apply for a 24-month STEM OPT extension the student must be on a period of standard post-completion OPT granted on the basis of either:

  • Having completed the degree, or
  • Having completed all course requirements but still completing his or her thesis or dissertation

The preamble to the final rule clarifies that,

"[A] student may qualify for a STEM OPT extension notwithstanding that the student has yet to complete a thesis requirement or equivalent, so long as the thesis requirement or equivalent is the only degree requirement still outstanding at the time of application (although this is not an available option when using a previously obtained STEM degree)."

"The final rule clarifies that F-1 students who have completed all other course requirements for their STEM degree may be eligible for a STEM OPT extension notwithstanding the continuing need to complete the thesis requirement or equivalent for their STEM degree ... DHS believes that this flexibility is consistent with DHS's historical interpretation of the regulatory provisions governing STEM OPT extensions. This exception, however, does not apply with respect to a previously earned STEM degree if the student seeks to base the STEM extension on such a degree."

School Accreditation and U.S. Location

Accreditation. The final rule requires the degree that is the basis for the 24-month extension to be "from a U.S. educational institution accredited by an accrediting agency recognized by the Department of Education at the time of application."

U.S. location. The preamble to the final rule clarifies that a STEM OPT extension can only be approved "where the degree that is the basis of the extension is conferred by a domestic campus of a U.S. educational institution accredited by an entity recognized by the Department of Education and certified by SEVP at the time of application. Because SEVP certifies educational institutions at the campus level, the overseas campuses of U.S. educational institutions are not eligible for SEVP certification. A degree granted by an overseas campus of a U.S. educational institution will not qualify an F-1student for a STEM OPT extension."

Eligibility for second period of STEM OPT after higher degree

The current 17-month STEM OPT rule limits individuals to only one lifetime STEM OPT extension. Under the 24-month rule, F-1 students who had already obtained one STEM OPT extension become eligible for a second STEM OPT extension (i.e., a total of two lifetime STEM OPT extensions) after:

  • Earning another qualifying STEM degree at a "higher degree level" and
  • Obtaining a new initial grant of standard 12-month post-completion practical training based on that higher degree

That is to say, the second period of STEM OPT cannot be tacked on to the first period of STEM OPT. Any subsequent application for an additional 24-month STEM OPT extension must be based on a degree at a higher degree level than the degree that was the basis for the student's first OPT extension, and follow another 12 months of standard post-completion OPT.

Basing STEM OPT on a previously obtained STEM degree

Under the current 17-month rule, an application for STEM OPT can be based only on the degree that served as the basis for the student's standard 12-month post-completion OPT. The 24-month rule permits students to use a previously obtained STEM degree from an accredited U.S. educational institution as a basis to apply for a STEM OPT extension, even if it did not serve as the basis for the student's standard 12-month post-completion OPT, under the following conditions:

  • The prior degree was conferred no more than 10 years before the DSO recommends a STEM OPT extension in SEVIS based on that degree;
  • The prior degree was conferred previous to the degree that provided the basis for the student's current period of standard post-completion OPT;
  • The prior degree was conferred by a U.S. educational institution that is accredited and SEVP-certified at the time the student's DSO recommends the student for the 24-month OPT extension;
  • The prior degree is in a degree program category included on the current STEM Designated Degree Program List at the time of the DSO recommendation;
  • The practical training opportunity that is the basis for the 24-month STEM OPT extension must directly relate to the prior degree;
  • The prior degree was actually conferred (i.e., a student who uses a prior degree cannot take advantage of the "all but thesis or dissertation" exception).

For example, the final rule will make the STEM OPT extension available to students who have a prior background in STEM but who are currently engaging in OPT that has been authorized based on their study towards a different or non-STEM degree. Such an OPT extension, however, would be available only to those students who seek to develop and utilize STEM skills from their prior STEM degree during the extended OPT period. This change will allow individuals who, after receiving a STEM degree, pursue higher-level degrees in public health fields, MBAs, and other advanced degrees that complement their STEM background.

STEM Definition and CIP Categories for STEM OPT Extension

A principal condition of eligibility for a STEM OPT extension is that the degree serving as the basis for the extension must be within a CIP code that appears on the DHS STEM OPT Degree Program List.

A new list will govern STEM OPT applications adjudicated on and after May 10 under the new 24-month STEM OPT rule. We will refer to this as the May 10, 2016 STEM OPT Degree Program List.

Take a look at 16.F.2 STEM Designated Degree Program List governing 24-month STEM OPT extensions, in the NAFSA Adviser's Manual (Section is open to all, in Demo Mode).

Practice Note

On the May 10, 2016, STEM OPT Designated Degree Program List governing 24-month STEM OPT extensions, the following two-digit CIP codes include all four- and six-digit codes within those two-digit series in the CIP taxonomy, including any codes that are subsequently added under those two-digit series in the future:

Other CIP codes that are not within the above two-digit series but that have been included on the STEM Designated Degree Program List as "related fields" are listed by their six-digit CIP code.

Mentoring and Training Plan: Form I-983

The final rule requires students to fully complete an individualized Form I-983 "Mentoring and Training Plan" and obtain requisite signatures from an appropriate individual in the employer's organization. The student must then submit the completed, signed form to "a DSO at the educational institution of his or her most recent enrollment," which should be understood to be a DSO at the school that manages the SEVIS record of the student's standard post-completion OPT, and who will manage the SEVIS record throughout the student's STEM OPT extension period.

The school whose DSO recommended the student's STEM OPT extension "is responsible for ensuring" that SEVP has access upon request to each Form I-983 and associated student evaluations, in either electronic or hard copy, within 30 days after the document is submitted to the DSO and for a period of three years following the completion of each STEM OPT opportunity. USCIS has clarified in SEVP webinars that students do not have to include a copy of the completed Form I-983 with their Form I-765 when they apply for the 24-month STEM OPT extension.

SEVP's STEM OPT Hub clarifies the I-983 process and the respective roles of student, employer, and DSO:

"F-1 students obtain the Form I-983 online before they apply to participate in a STEM OPT extension. The STEM OPT student and their prospective employer must work together to complete this form prior to the student applying for the STEM OPT extension.

Once completed and signed by both the STEM OPT student and their prospective employer, the student must submit the form to their DSO before the DSO may recommend a STEM OPT extension in the student's SEVIS record. The DSO's approval of a request for a STEM OPT extension means that the DSO determined that the Form I-983 is complete and signed and addresses all program requirements. DSOs may not recommend a student for a STEM OPT extension if:

  • The employer has not provided the required attestations.
  • The completed Form I-983 does not otherwise reflect compliance with the relevant reporting, evaluation and other requirements of the STEM OPT extension.

The DSO must review the student's submitted Form I-983 to ensure that it is completed, signed and addresses all program requirements.

The DSO is also responsible for keeping the Form I-983 and self-evaluations in the student's record. The DSO may retain these documents in either electronic or hard copy, and they must be accessible within 30 days of submission to the DSO and for 3 years following the end of the STEM OPT opportunity. DHS in its discretion may request a copy of the Form I-983, in addition to other documentation, from the student, the employer or the student's DSO.

ICE posted a Form I-983 tutorial in the STEM OPT Hub. You can also see a draft Form I-983 in PDF format on the ICE website.

The final rule requires Form I-983 to:

  • Include a disclosure of the student's "compensation, including any adjustments, as agreed to with the employer;"
  • Include an explanation of how the training is directly related to the student's qualifying STEM degree;
  • Identify goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student, and explain how those goals will be achieved through the work-based learning opportunity with the employer;
  • Describe a performance evaluation process and methods of oversight and supervision. "Employers may rely on their otherwise existing training programs or policies to satisfy the requirements relating to performance evaluation and oversight and supervision, as applicable."
  • Contain a certification of adherence to the training plan by an appropriate individual in the employer's organization who has signatory authority for the employer;
  • Contain an employer attestation that "the terms and conditions of a STEM practical training opportunity during the period of the 24-month OPT extension, including duties, hours, and compensation, must be commensurate with terms and conditions applicable to the employer's similarly situated U.S. workers in the area of employment."
    • 8 CFR 214.2(f)(10)(C)(8) defines "Similarly situated U.S. workers" as including "U.S. workers performing similar duties subject to similar supervision and with similar educational backgrounds, industry expertise, employment experience, levels of responsibility, and skill sets as the student. The duties, hours, and compensation of such students are 'commensurate' with those offered to U.S. workers employed by the employer in the same area of employment when the employer can show that the duties, hours, and compensation are consistent with the range of such terms and conditions the employer has offered or would offer to similarly situated U.S. employees."
     
  • Contain an employer certification that:
    • The employer has sufficient resources and personnel available and is prepared to provide appropriate training in connection with the specified opportunity at the location(s) specified in the Form I-983 or successor form;
    • The student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; and
    • The student's opportunity assists the student in reaching his or her training goals.
     

The actual Form I-983 employer attestations include:

"I certify on behalf of the employer that this Training Plan for STEM OPT Students ("Plan") is approved and that:

  1. I have reviewed and understand this Plan, and I will ensure that the supervising Official follows this Plan;

  2. I will notify the DSO at the earliest available opportunity regarding any material changes to this Plan, including but not limited to, any change of Employer Identification Number resulting from a corporate restructuring, any reduction in compensation from the amount previously submitted on the Plan 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, and any decrease in hours below the 20-hours-per-week minimum required under this rule;

  3. Within five business days of the termination or departure of the student during the authorized period of OPT, I will report such termination or departure to the DSO (Note: business days do not include federal holidays or weekend days; and an employer shall consider a student to have departed when the employer knows the student has left the practical training opportunity, or when the student has not reported for practical training for a period of five consecutive business days without the consent of the employer); and

  4. I will adhere to all applicable regulatory provisions that govern this program (see 8 CFR Part 214), which include, but are not limited to, the following:

    a. The student's practical training opportunity is directly related to the STEM degree that qualifies the student for the STEM OPT extension, and the position offered to the student achieves the objectives of his or her participation in this training program;

    b. The student will receive on-site supervision and training, consistent with this Plan, by experienced and knowledgeable staff;

    c. The employer has sufficient resources and personnel to provide the specified training program set forth in this Plan, and the employer is prepared to implement that program, including at the location(s) identified in this Plan;

    d. The student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker. The terms and conditions of the STEM practical training opportunity-including duties, hours, and compensation-are commensurate with the terms and conditions applicable to the employer's similarly situated U.S. workers or, if the employer does not employ and has not recently employed more than two similarly situated U.S. workers in the area of employment, the terms and conditions of other similarly situated U.S. workers in the area of employment; and

    e. The training conducted pursuant to this Plan complies with all applicable Federal and State requirements relating to employment."

The employer must also certify that:

  1. I have reviewed, understand, and will follow this Training Plan for STEM OPT Students (Plan);

  2. I will conduct the required periodic evaluations of the student;

  3. I will adhere to all applicable regulatory provisions that govern this program (see 8 CFR Part 214.2(f)(10)(ii)); and

  4. I will notify the DSO regarding any material changes to or material deviations from this Plan at the earliest available opportunity, including if I believe the student is not receiving appropriate training as delineated in this Plan."

Additional reporting obligations

Six-month validity reports. As with the current STEM OPT rule, a student in a period of 24-month STEM OPT must confirm the validity of the following information with the DSO every six months:

  • Legal name
  • Residential or mailing address
  • Employer name and address
  • Status of current employment/practical training experience

STEM OPT students must also separately report changes to this information within 10 days of the change, including any loss of employment.

Updated Form I-983 Mentoring and Training Plan. A new Form I-983 Mentoring and Training Plan must be executed and submitted to the DSO within 10 days of:

  • Beginning a new practical training opportunity with a new employer during the 24-month extension
  • Any time there is a "material change" in the terms and conditions of the original I-983

SEVP's STEM OPT Hub states,

"It is not the DSO's responsibility to be proactive with material changes. It is the student's responsibility to provide changes in information to their DSO, and failure to do so would constitute a violation of the student's F-1 status.

If there are material changes to or deviations from the Form I-983 the DSO has on file during the STEM OPT extension period, the student and employer must sign a modified training plan reflecting the material changes. The student (or employer) must file the modified Form I-983 with the DSO at the earliest available opportunity."

Evaluation Requirements. A student must complete two self-evaluations during the course of his or her STEM OPT period: the first one within 12 months of the STEM OPT start date and a second, concluding evaluation at the end of his or her STEM OPT period. Evaluations must be signed by the student and his or her immediate supervisor, and then submitted to the DSO. The school whose DSO recommended the student's STEM OPT extension is responsible for ensuring that SEVP has access upon request to each student evaluation (in either electronic or hard copy), beginning 30 days after the document is submitted to the DSO and for three years following the completion of each STEM practical training opportunity.

SEVP's STEM OPT Hub states,

"The student must complete the first "Evaluation of Student Progress" portion of the Form I-983 within 12 months of the listed STEM OPT start date. At the end of the STEM OPT extension, a student must conduct a second, final assessment. Once the evaluations are complete, the student must collect signatures from their employer and return the form to the DSO, who will keep it in the student's physical student record.

Student evaluations are a shared responsibility of both the student and the employer to ensure that the student's practical training goals are met. The student is responsible for conducting self-evaluations, obtaining the necessary signatures and returning the assessments to their DSO for inclusion in the student's record.

To complete these self-evaluations, the student needs to specify the evaluation date range (i.e., the timeline considered during the evaluation) and:

  • Assess their overall performance using the measures identified in the agreed upon training plan.
  • Evaluate their success in applying and acquiring the new knowledge, skills and competencies that were previously identified in the plan.
  • Discuss accomplishments, successful projects, overall contributions, etc., that occurred during the specified review period.
  • Address whether there are any modifications to the objectives and goals for projects or new areas for skill and competency development.

Once complete, the student must sign, print their name and enter the date of the signature. After the student signs a completed evaluation, the employer must show concurrence with the assessment information that the student has entered. To do this, the employer's Official with Signatory Authority must sign, print name and enter the date of signature on the evaluation form.

The student submits the first signed assessment to their DSO within 12 months of the start date listed on the form. The student needs to submit a second and final evaluation that recaps all the training and knowledge acquired during the complete training period to their DSO at the end of the STEM OPT extension."

Wages and Working Conditions

8 CFR 214.2(f)(10)(ii)(C)(8) requires that,

"The terms and conditions of a STEM practical training opportunity during the period of the 24-month OPT extension, including duties, hours, and compensation, must be commensurate with terms and conditions applicable to the employer's similarly situated U.S. workers in the area of employment."

In addition, although not specified in the final regulation, DHS the employer must attest in the "employer certification" section of Form I-983, that "The training conducted pursuant to this Plan complies with all applicable Federal and State requirements relating to employment."

Employers will have to develop a system to document the basis of their attestation that they are offering to the F-1 student terms and conditions commensurate with those given to "similarly situated U.S. workers in the area of employment." Employers who have sponsored H-1B employees will be familiar with such systems in connection with the "actual wage" and "working conditions" attestations on the Labor Condition Application (LCA) that supports an H-1B petition.

Restrictions on certain types of employment arrangements

The preamble to the final rule [81 FR 13079] states that,

"There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03)."

Volunteer/Unpaid position cannot support STEM OPT extension

Although not expressly stated in the regulatory wording, DHS clarifies in the preamble to final 24-month STEM OPT rule that given the "rule's general requirements, … a student seeking a STEM OPT extension will not be allowed to use a volunteer opportunity as a basis for a STEM OPT extension... The rule effectively prohibits students from using the STEM OPT extension to work in a volunteer capacity, among other requirements to ensure appropriate oversight and training in connection with the extension." DHS further explains in the preamble:

"DHS carefully considered whether to allow volunteer positions to qualify under the STEM OPT extension program but has decided against permitting such arrangements. Among other things, DHS is concerned that allowing volunteering would increase the potential for abuse on the part of international students who may accept volunteer positions for no reason other than a desire to extend their time in the United States. DHS is also concerned that allowing volunteering positions could undermine the protections for U.S. workers contained in the rule, including the requirement that F-1 students on STEM OPT extensions receive compensation commensurate to that provided to similarly situated U.S. workers. Similarly, disallowing volunteering avoids potentially negative impacts on U.S. students who may otherwise be denied paying research opportunities because universities, professors, or other employers would be able to retain F-1 student(s) for extended periods as volunteers. Requiring commensurate compensation for F-1 students-which does not include no compensation-protects both international and domestic students and ensures that the qualifying STEM positions are substantive opportunities that will equip students with a more comprehensive understanding of their selected areas of study and provide broader functionality within their chosen fields."

This position differs from SEVP OPT Policy Guidance arising out of the current 17-month STEM OPT rule, which allowed volunteer work to serve as the basis for a STEM OPT extension.

Self-employment cannot support STEM OPT extension

Although the final 24-month STEM OPT rule does not directly prohibit a student from registering in E-Verify and acting as his or her own employer (i.e., self-employment), are not entirely consistent with self-employment or entrepreneurial arrangements.

DHS has interpreted the general conditions of the regulation and the Form I-983 (e.g., employer reporting, training, supervision, wage attestations) to prohibit self-employment and to prohibit a student from signing the Form I-983 as employer/supervisor. Here are the relevant excerpts from the preamble to the final rule:

"The rule also requires that a student must have a bona fide employer-employee relationship with an employer to obtain a STEM OPT extension. In response to comments received, DHS clarifies that students may be employed by start-up businesses, but all regulatory requirements must be met and the student may not provide employer attestations on his or her own behalf."

"In addition, a STEM OPT extension must involve a bona fide employer-employee relationship. Finally, DHS clarifies that under this final rule students may seek practical training opportunities with start-up businesses, so long as all regulatory requirements are met. Such students may not provide employer attestations on their own behalf."

Employer Site Visits

The final rule describes DHS discretion to conduct employer on-site reviews at worksites to verify whether employers are meeting program requirements, including that they possess and maintain the ability and resources to provide structured and guided work- based learning experiences consistent with the Mentoring and Training Plan. The rule gives the discretion to "DHS," not just to SEVP, to initiate and conduct such visits. The preamble to the final rule states,

"The employer site visit is intended to ensure that each employer meets program requirements, including that they are complying with their attestations and that they possess the ability and resources to provide structured and guided work-based learning experiences outlined in students' Training Plans. Site visits will be performed at the discretion of DHS either randomly or when DHS determines that such an action is needed. … based on previous on-site-reviews to schools, DHS estimates that an employer site visit may include review of records and questions for the supervisor, and will take five hours per employer."

E-Verify and EIN Numbers for STEM OPT Employers

The final rule retains the current rule's requirement that an employer be "enrolled in the E-Verify program," as evidenced by a valid E-Verify company or client company ID number. The final rule also adds a new requirement that the employer have an employer identification number (EIN) used for tax purposes. Limits on Unemployment

The final rule revises the number of additional days that an F-1 student may remain unemployed during the STEM OPT extension period from 30 to 60 days. Under the current rule, a student may be unemployed no more than 90 days during his or her initial period of standard post-completion OPT, and for an additional 30 days (for an aggregate of 120 days) if the student receives a 17-month STEM OPT extension. The final rule retains the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allows an additional 60 days (for an aggregate of 150 days) for students who obtain a 24-month STEM OPT extension.

Travel during STEM OPT

DHS clarifies in the preamble to the final rule that,

"Students on STEM OPT extensions (including those whose application for a STEM OPT extension is pending) may travel abroad and seek reentry to the United States in F-1 status during the STEM OPT extension period if they have a valid F-1 visa that permits multiple entries  and a current Form I-20 Certificate of Eligibility endorsed for reentry by the DSO within the last six months. The student's status is determined by CBP upon admission to the United States or through a USCIS adjudication of a change-of-status petition."

Cap-Gap Extension

The final rule retains the current rule's F-1 to H-1B "Cap-Gap" provision, which temporarily extends an F-1 student's duration of status and any current OPT employment authorization if the student is the beneficiary of a timely filed H-1B petition filed by a cap-subject employer requesting a change of status with a start date of October 1. The final rule makes two important clarifications to the cap-gap benefit regarding travel and petition eligibility:

Travel. During the cap-gap period, a student can travel and reenter the United States provided:

  • The student has a valid F-1 visa at the time of reentry;
  • The student has a Form I-20 that reflects the cap-gap benefit and that has been properly endorsed with the DSO's travel signature; and
  • The H-1B petition filed on behalf of the student has been approved before the student travels (i.e., under longstanding INS/DHS policy, an applicant who departs the United States while a change of status application is pending is deemed to have abandoned the change of status application; in such a case, the student's cap-gap benefit would likewise end)

Cap-subject employers only. DHS clarifies in the preamble to the final rule that only H-1B petitions filed by cap-subject employers can serve as the basis for F-1 cap-gap extension benefits. An H-1B petition filed by a cap-exempt employer like an institution of higher education, therefore, would not impart cap-gap treatment to a student. In the preamble to the final rule, DHS rationalized that such petitions did not justify the cap-gap benefit, since cap-exempt employers can file an H-1B petition at any time, whereas given the demand for H-1B slots, cap-subject employers must file their petitions requesting a future October 1 start date.