Sunday, May 8, 2016

Understanding, and transitioning to, a 24-month OPT STEM extension

On May 10, 2016, the optional practical training (OPT) extension for those in a science, technology, engineering or mathematics ( STEM) field changed in several important ways. These changes affect those who will be applying for an extension on or after this date. However, the changes also are important to those who, on that date, are still awaiting a decision on their STEM extension. They also are important to some of those who, on that date, will still be within an already-granted, 17-month STEM extension.

Changes to OPT STEM extension
The most important changes to the STEM extension are the following:

-          24 months of extension time
An OPT STEM extension now is 24 months rather than 17 months. Therefore, following a program completion, a person could have, with a STEM extension, 36 months of OPT time rather than 29 months.

-          The ability to rely on a previous STEM degree for a STEM extension
Under the pre-May 10, 2016 rules, a person who wanted a STEM extension had to rely on the degree that immediately preceded the person’s original OPT period. Under the rules now, a person can file for, and potentially be approved for, an STEM extension based on a previously obtained STEM-eligible degree. In fact, that degree could have been earned as far as ten years in the past.

Suppose, for example, a person earns a STEM bachelor’s degree in 2015. This person then receives a non-STEM master’s degree, and later begins a one-year “regular” OPT based on that master’s degree. During this regular OPT, the person gets an offer for a job related to the STEM bachelors’ degree. Assuming the job and the person were otherwise eligible, this person then could apply, after May 10, 2016, for a STEM extension based on that previously-obtained bachelor’s degree, and the extension, if approved, would last for 24 months.
-          Two lifetime STEM extensions

Under the rules now effective May 10, 2016, a person is eligible for up to two lifetime STEM extensions, rather than only one.
Continuing our previous example: suppose this person returns to school immediately following the earlier STEM extension. The person then obtains a Ph.D. degree in a non-STEM subject. This person then can have one year of OPT in a job related to the major field. However, this person then can apply for a second STEM extension, and this extension is possible because of that earlier bachelor’s degree.

Employer responsibilities
An employer who offers a STEM extension job to an F-1 student now must abide by several conditions. They include the following:

-          Enrollment in e-Verify (note that employers already had to comply with this requirement under the pre-May 10, 2016 STEM rules)

-          Preparation and agreement with a training plan for the student

-          Providing supervision and training for the student by qualified staff

-          Providing compensation and benefits commensurate with similarly situated US workers

-          Non-displacement of any US workers in order to accommodate the STEM student

-          Providing a job that matches the STEM degree and which will achieve the objectives of the student’s training plan
Student responsibilities

Major responsibilities of students include the following:
-          Ensuring and certifying that the student’s job be directly related to the qualifying STEM degree. In addition

-          Keeping the designated school official (DSO) informed of issues related to compliance with the training plan or any material changes to the plan

-          Complying with STEM extension unemployment limit of  150 days maximum

Eligibility for 24 month STEM extension
Three types of F-1 students could be eligible for this 24-month STEM extension. They are

-          Students who file for a STEM extension on or after May 10, 2016

-          Students with a STEM extension request  that is pending on May 10, 2016

-          Students who currently are in a STEM extension at May 10, 2016
If you are filing for a STEM extension on or after May 10, 2016, and you are approved, your extension will be for 24 months.

If your STEM extension request was pending at May 10, 2016, then you will be receiving a request for evidence (RFE), and it will inform you of the option to convert your 17-month STEM extension to a 24-month extension. It also will tell you the information you and your employer must provide, for example the training and mentoring plan.  If you respond to the RFE and your responses are satisfactory, and if you are approved, then you will receive a 24 month extension. If you do not respond, or if your responses are unsatisfactory, then if you are approved for any STEM extension at all, it will be for only 17 months.
If, at May 10, you already were in a 17-month STEM extension, then you might be eligible to convert it to a 24-month extension. In order to do so, you and your employer must agree to the additional requirements. Furthermore, you must have, at the time you file for the additional seven months, at least 150 calendar days remaining on your original STEM extension.  You also must file for these additional months by a certain deadline, which is the EARLIER of

-          August 8, 2016, or

-          Sixty days from when your advisor enters your recommendation for the seven month extension into SEVIS
If you are in this last group, i.e. you already are in a STEM extension and you qualify for the additional seven months, please note that you must pay an additional filing fee for those extra months.

The above information does not constitute legal advice and does not form an attorney-client relationship.
Calvin Sun, attorney at law
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