United States: Recent Developments in Business Immigration Law, Including Implementation of Revised STEM OPT Program

Premium Processing of FY 2017 H-1B Cap Petitions to Begin No Later Than May 16

U.S. Citizenship and Immigration Services (USCIS) has announced that Premium Processing of fiscal year 2017 H-1B cap cases will be postponed until no later than May 16. USCIS stated it is delaying the start of the 15-day Premium Processing clock so that it can focus on initial intake, data entry and receipting of the large number of petitions it expects to receive this cap filing season. USCIS's announcement means that employers that requested 15-day Premium Processing service for their H-1B cap cases filed on April 1, 2016, may not see action taken on their cases (approval, denial or issuance of a request for evidence) before Tuesday, May 31, 2016.

Revised STEM OPT Program to Take Effect on May 10

As you are likely aware, F-1 students granted 12 months of Optional Practical Training (OPT) following graduation whose underlying degrees are in the field of science, technology, engineering or mathematics (STEM) may currently be eligible for an additional period of 17 months of OPT. Recently, the Department of Homeland Security (DHS) announced that a significantly revised and broadened STEM OPT program will take effect on May 10. Under the new rule, more F-1 STEM students will be eligible for an extension of their OPT, and those who qualify will be granted a longer period of employment authorization. However, their employers will be subject to stringent new requirements, including the obligation to prepare a detailed training plan for each STEM OPT candidate, comply with more extensive reporting requirements and undergo worksite inspections conducted by U.S. Immigration and Customs Enforcement (ICE). These requirements apply only to extensions of OPT for F-1 students with a qualifying U.S. science, technology, engineering or math degree; the standard 12-month OPT program is unchanged. As under the prior rule, employers must be enrolled in e-Verify to employ an F-1 student in STEM OPT. (Please contact us if you have any questions or wish to learn more about e-Verify.) A summary of the key points of the revised STEM OPT program is below.

ELIGIBILITY FOR A STEM OPT EXTENSION

Under current rules, a 17-month extension of OPT is available to F-1 students who have earned a qualifying U.S. degree in a designated STEM field. The new regulation will broaden the eligibility criteria for a STEM extension of OPT and lengthen the duration of STEM employment authorization, as follows: 

• A more extensive list of U.S. STEM degrees and related degrees will qualify F-1 students for a STEM OPT extension. DHS is expected to publish the expanded list of STEM-designated degrees in the coming days. As under prior rules, the F-1 student's degree must be directly related to the STEM OPT job. 
• The STEM extension of OPT will be 24 months in duration (rather than 17 months), meaning that qualifying F-1 students will be eligible for a total of 36 months of OPT employment authorization, including the initial 12-month OPT period. (Students who were granted a 17-month STEM OPT extension under earlier rules can seek a further seven months of work authorization, subject to the requirements of the new rules, discussed below.) 
• F-1 students with a previously obtained STEM degree can qualify for the OPT extension as long as the student's prior degree is directly related to the position. For example, an F-1 student whose most recent U.S. degree was a Master of Business Administration could qualify for a STEM OPT extension on the basis of her prior U.S. bachelor's degree in mathematics. The earlier degree must have been conferred within 10 years before the application for the STEM extension, and have been issued by an accredited U.S. school that is certified by the Student and Exchange Visitor Program at the time of the application. This is a significant change, as under the prior rule a STEM extension was available only to those whose most recent U.S. degree was in a qualifying STEM field.

REVISED EMPLOYER OBLIGATIONS

Employers must meet significant new obligations in order to employ an F-1 student during the STEM OPT period: 

• Before an application for a STEM OPT employment authorization document (EAD) can be filed, the employer and the F-1 student must prepare and sign a formal training plan and submit it to the student's designated school official (DSO). (DHS is expected to issue a new Form I-983, the Training Plan for STEM OPT Students, once the new regulation is published in May.) The plan must satisfy a number of stringent criteria, including detailing the specific goals for the STEM OPT period and how they will be achieved; detailing the specific knowledge, skills or techniques the employer will impart to the student; explaining how the training is directly related to the student's STEM degree; and describing how the student will be supervised and evaluated. (The training plan does not need to be submitted with the USCIS employment authorization application, but USCIS has the authority to request for a copy of the plan.) 
• Employers must certify in the training plan that the terms and conditions of the STEM OPT employment — including compensation — are commensurate with those provided to similarly situated U.S. workers. Additionally, the employer must certify that the STEM OPT student will not "replace" a full- or part-time, temporary or permanent U.S. worker. Furthermore, employers and students are obligated to notify the DSO "at the earliest available opportunity" if there are material changes to or deviations from the training plan (such as a significant decrease in work hours or a change in the employer's EIN due to corporate restructuring). 
• The employer and the F-1 student must complete a performance evaluation after the first 12 months of STEM OPT, and complete another evaluation at the conclusion of the STEM program. Evaluations must be signed by the student and employer, and the student must submit the evaluation to the DSO within 10 days after the conclusion of the review period.

The new regulation also gives ICE the authority to conduct on-site reviews to verify whether employers are adhering to their training plans and otherwise complying with STEM OPT program requirements. The agency will give employers 48 hours' notice of a site visit, unless the visit is triggered by a complaint or other evidence of noncompliance. Finally, note that the new rule allows STEM OPT students a maximum of 150 days of unemployment during their entire post-completion OPT period – 90 days for the initial 12-month grant and an additional 60 days once granted a STEM extension.

USCIS will begin to accept applications for a STEM extension of work authorization under the new rule on May 10, 2016. STEM OPTs issued under the former regulation remain valid, but all requests filed on or after May 10, or requests that remain pending with USCIS as of May 10, are subject to the new rules. (Furthermore, an F-1 student who is in a period of 17-month STEM OPT authorized under the prior regulation can file for a seven-month extension under the new rules between May 10, 2016, and August 8, 2016, provided the student has at least 150 days remaining on his or her EAD at the time of filing.) As these are significant changes, please carefully review the revised employer obligations in advance of May 10 if you intend to hire any recent graduates under the STEM OPT program. Please feel free to contact us if you have any questions about this or any other STEM OPT-related issue.

USCIS Provides Extension of Work Authorization to H-1B1s and E-3s with Timely Filed Application to Extend a Stay

USCIS has long provided an automatic, 240-day period of extended employment authorization to nonimmigrants in H-1B, L-1 and O-1 status whose current employers have timely filed extension of stay petitions on their behalf. As of February 14, 2016, USCIS now provides this same extended work authorization benefit to Chilean and Singaporean H-1B1 and Australian E-3 nonimmigrants who are being sponsored for an extension of their stay. The new rule gives eligible H-1B1s and E-3s an additional 240 days of work authorization beyond the expiration date of their Form I-94 arrival record, as long as a timely petition to extend status has been filed by the employer that sponsored the most recent period of stay. The automatic 240-day period of authorized employment applies only to extensions of employment with the same employer, and does not include requests for changes of employer.

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