May 25, 2020

New DHS Final Rule on Additional STEM Optional Practical Training, Effective May 10, 2016

The Department of Homeland Security has begun implementing the new, additional 24 months of F-1 Optional Practical Training (“OPT”) work authorization for foreign students with a STEM major. This is a major in science, technology, engineering or mathematics.

What’s new?

  • New I-983 Form, Training Plan for STEM Students. – The employer and the student must complete and submit the form to the DSO (Designated School Official) for review and recommendation. The I-983 Training Plan requires an employer to make certain attestations, including:

    • It has sufficient resources and trained personnel to provide appropriate training to the student;

    • The student will not replace a full- or part-time, temporary, or permanent U.S. worker; and

    • The opportunity will help the student attain his or her training objectives.

  • The employer is expected to play an active role in ensuring the STEM OPT program’s integrity.

  • The student is required to complete a self-evaluation (which must be reviewed and signed by the employer) and submit it to the DSO annually.

  • The student and employer must report any material changes, termination, change in employer, or employee’s non-compliance (for example, there is no termination but the employee has not reported to work for five consecutive business days).

  • ICE may conduct site visits with 48 hours’ notice, except for site visits triggered by evidence of non-compliance, which are unannounced.

  • As of May 10, 2016, USCIS will no longer adjudicate pending 17-month STEM EAD applications. Instead, students should expect to receive a Request for Evidence (RFE) from USCIS. Upon receipt, a student must work with his or her employer to complete an I-983, submit the completed I-983 to the school’s DSO, and obtain a new I-20 with 24-months STEM OPT recommendation. Students who have previously received a 17-month STEM OPT may apply for the additional 7 months STEM OPT if he or she meets the following requirements:

    • The student must have at least 150 calendar days remaining before his or her 17-month STEM OPT EAD expires at the time the I-765 Application for Employment Authorization is filed with USCIS;

    • The student must properly file an I-765 application with USCIS requesting the 7-month balance before August 8, 2016; and

    • The student must meet all of the requirements for the 24-month STEM OPT extension under the new rule, including, but not limited to, the submission of the I-983 Training Plan to his or her DSO.

What remains the same?

  • Employer must be an E-Verify employer.

  • Students must submit a timely extension application, I-765 Application for Employment Authorization to USCIS before the current 12-month OPT expires.

  • Cap gap extension remains the same. For additional information, please visit https://studyinthestates.dhs.gov/stem-opt-hub.

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About this Author

Minnie Fu, Jackson Lewis, Immigration Litigation Lawyer, Employment VISA Applications attorney
Principal

Minnie Fu is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on assisting employers in obtaining employment-related visas and advising employers on compliance with U.S. immigration laws and regulations.

Ms. Fu has twenty years of experience in employment-based immigration matters, including nonimmigrant and immigrant visa matters, developing corporate immigration policies and procedures for best practices, and strategic corporate planning for international personnel employment by...

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