DHS Announces New Regulations to Extend STEM OPT Program and Continue Cap-Gap Provision

The H-1B lottery is over, but new Department of Homeland Security (DHS) rules have increased options for STEM (Science, Technology, Engineering or Mathematics) students whose petitions may not have been chosen for H-1B processing. If you have a STEM student working pursuant to valid Optional Practical Training (OPT), they may be eligible for an extension of their stay under a new DHS rule effective May 10, 2016. Moreover, for students who were approved for H-1B status that takes effect in October, the “Cap-Gap” provision will remain in effect, allowing them to remain in the U.S. under F-1 status pending the start of their H1-B status even if their current F-1 status expires before October.

The new extension regulations allow F-1 students with STEM degrees who have been granted 12 months of practical training pursuant to the general OPT program to apply for a 21-month extension of this training. A student’s practical training pursuant to the STEM OPT extension must be directly related to the student’s major area of study, and the student’s STEM degree must be both granted by an accredited U.S. college or university and in a DHS-recognized STEM field. The student may base the extension on his or her most recent academic degree, or in some circumstances may base the extension on a STEM degree that the student earned earlier in the U.S.

The rule requires STEM OPT students to apply for this extension before their current OPT expires. However, if a student’s current OPT expires while his or her application for an extension is pending, he or she will receive an extension of employment authorization of up to 180 days.

For F-1 STEM students to be eligible for the 24 month extension, the employer must be enrolled in and remain in good standing with E-Verify, assist with reporting and training plan requirements, and attest to all of the following: (1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity helps the student attain his or her training objectives.

If your company is not yet enrolled in E-Verify, it is important to understand the positives and negatives in enrolling in the program. There should also be a consensus that enrollment in the program is in the best interest of the company. For instance, the company may need to allocate additional resources to implement and use the E-Verify program. If there are questions about this new rule, or enrolling in E-Verify, please contact our office.

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