DHS Issues New Rule Extending STEM OPT Employment Authorization


The U.S. Department of Homeland Security announced today changes to the regulations relating to Optional Practical Training (OPT) for F-1 students who obtained degrees in Science, Technology, Engineering, and Mathematics (STEM) fields from U.S. institutions of higher education.

Effective May 10, 2016, F-1 STEM students will be able to extend their initial one-year OPT period by 24 months. Previously, such students were only able to extend their OPT status by 17 months. Certain F-1 STEM students who were previously granted 17-month STEM OPT extensions will have a limited window to apply for an additional seven months of OPT. The new rule also increases oversight of STEM OPT extensions, requiring employers to incorporate formal training programs, ensure STEM OPT students’ duties, hours and compensation are commensurate to those of similarly situated U.S. workers, and to report material changes to the training programs or employment. The new regulations are only applicable to students employed by employers who participate in E-Verify.

Extending OPT employment authorization for an additional two-year period provides F-1 STEM students with additional chances to apply for and be selected in the annual H-1B cap lottery. The rule also extends cap-gap protection for F-1 students who are selected in the H-1B cap lottery, automatically extending F-1 student status and work authorization if the H-1B petition is timely filed and approved. We recommend reviewing the status of employees working pursuant to OPT status to determine whether they will be eligible for STEM extensions under the new regulations.

For additional information, please contact Vinh Duong or Nora Katz in Waller’s Immigration practice at 615.244.6380.

The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.