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Volume XII, Number 267


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STEM OPT and Green Card Portability Rules Continue to Evolve

In October 2015, the Department of Homeland Security (DHS) issued a proposed rule to increase the validity period of Optional Practical Training (OPT) work authorization for certain F-1 students with degrees in science, technology, engineering or mathematics (STEM). Currently, such students may hold an initial 12-month period of OPT work authorization and then may seek a 17-month STEM OPT extension if they are working for an employer that participates in E-Verify. The proposed rule would replace the 17-month STEM OPT extension with a 24-month STEM OPT extension. Further, the proposed rule seeks to improve and increase oversight of STEM OPT extensions by requiring formal mentoring and training programs by employers, implementing wage protection measures for STEM OPT students and U.S. workers, and ensuring that STEM OPT extensions are available only to students with STEM degrees from accredited schools.

The proposed rule responds to a decision by a U.S. district court issued in August 2015, which will serve to terminate the STEM OPT extension program on procedural grounds unless a new rule is in effect by February 12, 2016. The court found that U.S. Citizenship and Immigration Services (USCIS) implemented the STEM OPT extension program in 2008 without conducting a proper public comment process. The comment period for DHS's new proposed rule was recently completed. If the agency moves quickly, it may finalize the rule before the February 12, 2016 deadline, avoiding disruption of the STEM OPT extension program.

In addition to its efforts to maintain the STEM OPT extension program, DHS has recently issued a draft policy memorandum to provide clarity related to job portability for green card applicants. Specifically, the draft memorandum provides guidance to USCIS Immigration Service Officers (ISOs) in determining whether an individual’s new job is in the “same or similar” occupational classification as the individual’s original job offer. Consistency and efficiency in such matters, which the draft memorandum seeks to promote, is essential, as green card applicants are allowed to change jobs or employers without starting the green card process anew only if: (i) the individual’s employment-based I-485 application the final major step in the green card process has been pending for at least 180 days; and (ii) the individual’s new job is in the same or similar occupational classification as the job for which the I-140 petition, the second major step in an employment-based green card process was filed.

The draft memorandum instructs ISOs on how they may use the Department of Labor’s Standard Occupational Classification codes and other evidence to determine whether the individual has moved to a job in the same or similar occupational classification. By offering consistency in its determinations, USCIS may reduce individuals’ reluctance to accept new job opportunities or promotions, thereby increasing job flexibility and stability, while their green card applications are pending. USCIS will accept comments related to the draft memorandum through January 4, 2016, and the agency plans to finalize the memorandum for an effective date of March 21, 2016.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume V, Number 328

About this Author

Jose Olivieri, Michael Best Law Firm, Higher Education, Labor and Immigration Attorney
Partner, Industry Group Chair

José is the founder and co-chair of Michael Best’s immigration law practice. Clients depend on his deep knowledge of and experience with U.S. immigration law and employment-based immigration matters, including:

  • Immigration status

  • Permanent labor certification

  • National interest waiver

  • Adjustment of status

  • Consular processing

  • Citizenship and...

Kelly M. Fortier, Michael Best Law Firm, Business immigration, Attorney

Kelly helps employers of all sizes meet their staffing needs by handling the immigration issues they face in hiring foreign nationals and moving employees around the globe.

A partner in the firm’s Labor and Employment Relations practice group and Co-chair of the Immigration and International Migration team, she handles compliance issues for corporations that transfer dozens of employees into and out of the United States each year as well as small companies seeking to bring in a few key hires from abroad.

Kelly is highly...

Kelly Rourke, Michael Best Law Firm, Immigration and Employment Attorney

Kelly assists employers with administrative law matters, focusing her practice primarily on employment-based immigration.

She regularly helps clients meet critical staffing needs by obtaining nonimmigrant status for foreign workers and securing and maintaining legal permanent residence for foreign nationals. To this end, she handles an array of nonimmigrant petitions, applications for labor certification, adjustment of status and naturalization filings, consular processing matters, motions to reopen, and motions to reconsider. She also...