United States – New Rules Covering STEM-OPT Extension

United States – New Rules Covering STEM-OPT Extension

This GMS Flash Alert reports on a new rule from the Department of Homeland Security published in the Federal Register that amends the regulations on STEM OPT extension, allowing for a STEM OPT extension of 24 months for eligible students.

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Effective May 10, 2016, F-1 visa students with Science, Technology, Engineering, and Mathematics ("STEM") degrees may be eligible to extend their initial post-completion Optional Practical Training ("OPT") for an additional period of 24 months.

On March 11, 2016, U.S. Department of Homeland Security ("USDHS") published a final Rule amending the regulations on STEM OPT extension, allowing for a STEM OPT extension of 24 months – STEM OPT extension was previously available for 17 months.1

Students who have already applied for, or currently hold, a 17-month STEM extension will be eligible to request an additional seven months.

Seven-month extension applications must be filed on or before August 8, 2016. 

WHY THIS MATTERS

New Rule’s Benefits to Employers:

Longer post-graduation employment period in United States – STEM eligible students will have a total of up to 36 months of OPT Employment Authorization – 12 months initial post-completion OPT and 24 months STEM OPT Extension.

More STEM eligible degrees – USDHS has expanded the list of eligible STEM degrees, although the new list has not yet been released.  More foreign students will become eligible for STEM OPT extension.

Expanded eligibility to qualify for STEM extension – Employers likely will have more options to hire and retain foreign students to work in the U.S. as STEM extension does not need to be based on the most recent degree obtained by the foreign student.  

A previous STEM eligible degree obtained within the past 10 years can provide the basis to qualify for the 24-month extension, provided that the prior degree is directly related to the current position

Employer Compliance Obligations

While U.S. employers enjoy additional benefits for hiring foreign students under the amended regulations, they must also meet the following obligations:

  • Enrolled in E-Verify and remain in good standing.
  • Report material changes to the STEM OPT student's Designated School Official ("DSO") within five (5) business days.
  • Implement a formal training program.
  • Provide an OPT opportunity that matches similarly placed U.S. workers.
  • Complete Form I-983, Training Plan for STEM OPT Students – this must be completed and signed by the employer and student prior to applying for STEM OPT.  The Training Plan must attest that:
    • the U.S. employer has sufficient staff and trained personnel to train the student;
    • the student will not replace a U.S. worker; and
    • the work will further the student's training.

Qualifying Criteria for STEM OPT Extension

The foreign students must:

  1. have been granted OPT and currently be in a valid period  of OPT;
  2. have earned a bachelor's degree, or higher, from an accredited school (a student may use a prior STEM degree to qualify, provided that he/she has not already received a STEM OPT Extension based on that degree);
  3. work for an employer who meets all of the new STEM OPT Employer Responsibilities requirements; and
  4. File Form I-765, Application for Employment Authorization up to 90 days before the current OPT employment authorization expires, and within 60 days of the date the DSO enters the recommendation for OPT in to the SEVIS record (Student and Exchange Visitor Information System record).

It is also important to note that the new Rule provides for a longer unemployment period – a maximum of 150 days.

STEM OPT students may be unemployed for an additional 60 days during the 24-month STEM OPT extension period, in addition to the 90-day unemployment period during the initial post-completion OPT.

FOOTNOTE

1  See the Federal Register (online) at: 

https://www.federalregister.gov/articles/2016/03/11/2016-04828/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and 

RELATED RESOURCE

This article is excerpted, with permission, from “STEM OPT Extension – New Rule,” in e-Alert (2016-03), a publication of the KPMG International member firm in Canada. 

Please note KPMG LLP Law in Canada can assist clients with U.S. immigration matters.  KPMG LLP (U.S.) does not offer immigration services. 

The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

© 2016 KPMG LLP, a Delaware limited liability partnership and the U.S. member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.

Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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