Last Call for New Cap H-1Bs and International Student STEM Option

Kimberly A. Clarke

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Last Call for New Cap H-1Bs and International Student STEM Optional Practical Training Changes

by: Kimberly A. Clarke, Nina Thekdi of Varnum LLP - Employer's Resource Main

Friday, March 11, 2016

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April 1 is the filing date for new H-1B cap subject applications. There is a 7-day process that must be completed through Department of Labor prior to filing. If you have any potential H-1B petitions (foreign students on optional practical training or foreign applicants), please contact us as soon as possible to meet the filing deadline.

For international students in science, technology, engineering and mathematics (STEM) fields, Department of Homeland Security published a final rule March 11, 2016, to replace the 2008 interim final rule, governing the Optional Practical Training (OPT) STEM extensions. The final rule contains the following requirements:

All STEM OPT employers must participate in DHS' E-Verify program.
The STEM OPT extension program is lengthened from 17 months to 24 months.
STEM OPT extension is only offered to students earning a degree from a U.S. Department of Education accredited school or accrediting agency and certified by SEVP^[1].
Participating students can only apply for a second STEM OPT extension if they are receiving an additional qualifying degree from an accredited college or university.
Participating students may use previously earned qualifying degree to apply for a STEM OPT extension if the prior degree is accredited by a U.S. Department of education- recognized accrediting agency and certified by SEVP at the time of application. Also, the prior degree cannot have already been used to apply for a STEM OPT extension.
A formal training program is required of employers participating in the STEM OPT program.
Employers and students are required to report material changes in their training program.
The student's training opportunity must be comparable with a U.S. worker participating in a similar position in the same geographic area of employment.
A student participating in the program cannot replace a full-time, part-time, temporary or permanent U.S. worker.
To qualify, a student must work a minimum of 20 hours per week per employer.
Students are permitted a limited unemployment period before commencing the STEM OPT extension.

_{[1] SEVP monitors international students holding F and M visas in the United States and their dependents and certifies the schools and programs these students attend. SEVP ensures students, visitors and schools comply with U.S. laws.}