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LAW OFFICES OF THOMAS V. ALLEN, PLLC.
Edison, NJ:
1090 King Georges Post Road
Bldg.. 12, Suite 1207
Edison, NJ 08837
Phone: (732) 832-7978
Fax: (732) 444-5998
South Plainfield, NJ:
50 Cragwood Road
Suite 103
South Plainfield, NJ 07080
Phone: (732) 832-7978
Fax: (732) 444-5998
Dallas, TX:
1200 W. Walnut Hill Ln.
Suite 3150
Irving, TX 75038
Phone: (972) 525-2555
Fax: (732) 444-5998
1
NEW 24 MONTH F-1 STEM OPT
RULE
The new rule effective from May 10th 2016.
replaces the 2008 interim rule and lengthens the OPT extension
period for holders of Science, Technology, Engineering and Math
(STEM) degrees issued by U.S. institutions of higher education from
17 months to 24 months.
2
The rules that are not changed:
E-Verify:
Employer has to be e-verified and in good standing.
CAP Gap:
Rules of CAP Gap will remain the same.
(The DHS temporarily extends an F-1 student’s duration of status
and any current employment authorization if the student is the
beneficiary of a timely filed H-1B petition. Change of Status has to
be requested. The employment authorization is extended only until
October 1st, the beginning of the Fiscal Year.)
180 Days Automatic OPT extension after timely filing:
Employment Authorization automatically extended for 180 days
after the expiry of the 12 month EAD if the OPT extension
application is timely filed.
3
New Rules:
Benefits:
24 Month STEM
Two Lifetime STEM OPTs opportunities.
Students who have used the first grant of STEM OPT work
authorization and graduated the second STEM eligible academic
program can apply for an additional 24 month STEM OPT
extension.
STEM OPT extension based on previous degree.
The prior degree should be obtained 10 years preceding the
application date.
Increasing Unemployment Limits.
90 days during the initial 12 month OPT.
60 days during the 24 month STEM OPT extension. (prior rule only
30 days)
Travel while 24 Month OPT extension is pending
Students allowed to travel internationally while the OPT extension
application is pending.
4
STUDENT RESPONSIBILITIES:
60 Day filing window after DSO Recommendation
The student has to file the STEM OPT within 60 days of
DSO recommendation. Previously 30 days.
The 12 month EAD filing is still 30 days.
STEM OPT to be filed 90 days prior to OPT expiration.
The new rule reduces to time to 90 days from 120 days
Student Reporting:
Validation Report: Student must submit to the DSO a
validation report every 6 months. The report should include
the place of residence and the employment, even if there is
no change.
Self Evaluation Report: To be submitted 12th and the 24th
month of STEM OPT to the DSO. The employer has to sign
off on the evaluation. (included in the Form I-983)
Form I-983: Student my fully complete Form I-983 (Training Plan
for STEM OPT students and submit to the DSO, before the DSO
can recommend a 24 month OPT extension. 5
6
STUDENT RESPONSIBILITIES: (Contd..)
Material Change:
Student and employer to sign modified I-983 and submit to the
DSO when there is a material change. (Material change includes
change in legal name, residential or mailing address or
employment details etc.. within 10 days of such change)
Change in employer:
Student has to submit a new I-983 to the DSO within 10 days of
starting the new practical training opportunity.
7
EMPLOYER RESPONSIBILITIES:
Wage Requirement. Student to receive compensation commensurate
with similarly situated U.S worker.
DOL prevailing wage (flcdatacenter.com) not a requirement.
Employer will not replace full or part-time U.S workers as a result of the
STEM OPT employment.
The employer has sufficient resources and training personnel available
to provide mentoring and training.
This makes difficult for start up companies to hire STEM OPT
students.
The OPT employment is directly related to the STEM degree that
qualifies the student for the STEM OPT extension.
The DSO can deny recommending the Student for STEM OPT
based on this information on the Form I-983.
The student will receive on-site supervision and training consistent with
the training plan by experienced and knowledgeable staff.
8
EMPLOYER RESPONSIBILITIES: (contd..)
Review student’s self evaluation: Employer to review the student’s
annual self-evaluation on their own progress and sign it to attest to its
accuracy.
Report Material Change: Employer to work with the OPT student to
report to DSO of any material change or material deviation from the
student’s formal training plan, by submitting new I-983.
Report termination of employment: Employer to report to the DSO
within 5 days of the termination of the employment of the STEM OPT
Student.
Employee-Employer Relationship: Bona fide employee-employer
relationship required to obtain STEM OPT extensions.
Volunteer, unpaid or self-employment position will not be eligible for
STEM OPT extensions.
9
TRANSITION RULES:
Pending 17-month STEM OPT: If pending as of May 10, 2016, USCIS
will issue a RFE to give that student a chance to request a 24 month
extension instead.
Already approved 17 month OPT extension:- 2 OPTIONS:
OPTION 1: Continue on the 17 month STEM EAD. The new
regulation does not apply.
OPTION 2: Request the balance 7 month period.
Should be applied before August 8, 2016.
Should have atleast 150 calendar days remaining prior to the
end of 17 month OPT extension at the time of filing I-765.
Should meet all the other requirements for the 24 month OPT
extension.
10
MISCELLANEOUS RULES:
SITE VISITS: DHS may, at its discretion conduct site visits to ensure
that employers and students comply with the rules of STEM OPT
extensions.
48 Hrs. notice to be given in advance, unless the visit is triggered
by a complaint or other evidence of non-compliance.
UNIVERSITY ACCREDITION:
The degree has to be accredited at the time of filing EAD.
The school that issued the degree has to be SEVP certified.
11
EMPLOYER RISK AREAS:
Failure to Meet Reporting/Record-Keeping Requirements.
Resignation/Termination before STEM OPT expiration dates.
Complete and certify Form I-983.
Material changes to existing Form I-983.
Evaluation of STEM OPT employee progress.
Failure to pay commensurate wage.
STEM OPT displacing US worker.
12
CAN ‘IT CONSULTING’ COMPANIES HIRE STEM OPT STUDENTS?
QUALIFYING EMPLOYERS AND EMPLOYMENT:
Eligible Employer.
E-Verify
FEIN
Sufficient resources to train
Not replacing U.S Workers
Eligible Employment.
At least 20 hours per week
Directly related to qualifying degree
Compensation on par with similarly situated U.S workers.
13
CAN ‘IT CONSULTING’ COMPANIES HIRE STEM OPT STUDENTS?
The Rule does not specifically bar Consulting companies from hiring STEM OPT
students.
The preamble to the regulation discusses certain types of employers who will not
be eligible or are not APT for OPT employment (page 13079 of the regulation).
Includes:
Volunteers
Entrepreneurs
Start up businesses
Self Proprietorship
Temp Staff Agencies
Employment through consulting services that provide labor for hire
Other relationship that do not constitute a bona fide employer-employee
relationship.
14
CAN ‘IT CONSULTING’ COMPANIES HIRE STEM OPT STUDENTS?
Differentiate IT Consulting business from temp staff agencies or consulting
services that provide labor for hire.
• Consulting companies provides technical training to its employees which
other staffing companies do not.
• Consulting companies provide its employees the tools required to perform the
job. (laptop, open source licenses or paid software licenses..etc)
• The Beneficiary produces an end product that is directly related to the
Employers line of business.
This requirement similar to Neufeld Memo on ‘employer-employee
relationship’ issued on January 28, 2010.
15
CAN ‘IT CONSULTING’ COMPANIES HIRE STEM OPT STUDENTS?
ON-SITE SUPERVISION:
• Difficult for IT Consulting companies to comply.
• If multiple employees of the employer working at the same end client, on-site
supervision may be proved.
• Form I-983: Employer Oversight: Explain how the employer provides
oversight and supervision of individuals filling positions such as that being
filled by the named F-1 student. If the employer has a training program or
related policy in place that controls such oversight and supervision, please
describe.
(Sample Answer)
• Although, the student will be located at off-site, the student will have face-to-face video meetings and webinars with the employer supervisor on a weekly basis. The supervisor will have a weekly Monday morning conference call with the student and an end-of week check-back on the status completion. Further as and when required on a day to day basis the supervisor will be available to connect with the student providing guidance for the completion of tasks assigned at the Client. Prior to completion, the supervisor will review the work product to gauge the progress, and recommend areas of improvement. The supervisor will provide further training on the technology that is required.