Understanding the DHS final rule for STEM students and Cap-Gap relief

On March 11, 2016, the Department of Homeland Security (DHS) published a Final Rule in the Federal Register entitled, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.” The Final Rule takes effect on May 10, 2016. The new regulation replaces the 2008 Interim Rule, which was responsible for creating the original 17-month STEM OPT Extension.

Among other changes, the new rule provides for a 24-month extension of optional practical training (OPT) for qualified F-1 students in the fields of science, technology, engineering, and mathematics (“STEM” fields). The 24-month extension is in addition to an F-1 student’s initial 12 month grant of practical training (post-completion OPT or curricular practical training (CPT)). Beyond increasing the length of STEM OPT extensions, from 17 to 24 months, the new rule imposes additional requirements upon both the F-1 student and his or her OPT employer, with the stated aim of improving the educational benefit of OPT employment while simultaneously increasing program oversight.

The newly created integrity measures include the following:

  • Requiring individualized training plans developed by the employer and the student;
  • Requiring the student to regularly report to the university’s designated school official;
  • Requiring the employer to attest that the student will not replace a full- or part-time, temporary or permanent U.S. worker;
  • Requiring an employer to offer the same terms, conditions, hours, and compensation to the STEM OPT student as similarly situated U.S. workers;
  • Allowing extensions only to students with degrees from accredited schools; and
  • Authorizing site visits by ICE to verify training plans, compensation, and non-displacement attestations employers are required to sign.

As seen in the 2008 Interim Rule, the two-year OPT extension is limited to foreign national students who obtained degrees in designated STEM fields from accredited U.S. institutions. Immigration and Customs Enforcement (ICE) maintains a list of all qualifying STEM-Designated Degree Programs. However, the new rule will allow students to qualify for the STEM OPT at each degree level, rather than just once in a lifetime. The new rule will also allow students to seek an OPT extension based on qualifying prior degrees, in addition to the degree which was most recently conferred.

The “Cap Gap” relief provisions introduced under the 2008 Interim Rule have been included in the new Final Rule, continuing DHS’ policy to allow for an additional extension of OPT for certain applicants with pending or approved H-1B Petitions. Also in keeping with the prior rule, STEM OPT extensions are only permitted for students employed by employers who participate in the USCIS electronic employment verification program known as E-Verify.

DHS has provided guidelines for the implementation of the new rule, including provisions for the adjudication of 17-month STEM OPT extension requests filed prior to the May 10, 2016 implementation date for the new rule. Students who apply prior to that date will, in certain circumstances, have the opportunity to amend their request to receive a 24-month extension instead.

Glorily López is an immigration attorney and practice leader for Murphy Desmond S.C.

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