On October 19, the Department of Homeland Security (“DHS”) issued the long awaited notice of proposed rulemaking to amend its F-1 nonimmigrant student visa regulations to allow for an extension of a student’s Optional Practical Training (“OPT”) period for an additional 24 months if the student has met the requirements.  The proposed rule is in response to a decision of the  U.S. District Court for the District of Columbia in Washington Alliance of Technology Workers vs. U.S. Department of Homeland Security invalidating USCIS’s 2008 17-month OPT extension rule.  The court delayed the effectiveness of its decision to invalidate the rule by six months to give DHS time to issue notice and comment rulemaking.

The notice of proposed rulemaking (NPRM) proposes a few changes to the 2008 interim final rule (IFR), which are outlined below:

Length of Time for OPT Extension:

• NPRM:  A current F-1 student in the OPT program may request an extension of 24 months if he or she has earned a STEM degree.

• 2008 IFR:  A current F-1 student in the OPT program may request an extension of 17 months if he or she has earned a STEM degree.

*Note:  During the transition phase, DHS is proposing to allow those students who are currently in their  17-month extension to request the balance of up to 120 days prior to the end of their extension, but only if the student meets all the requirements of the new proposed program, outlined in more detail below.  Those students with a pending application for the 17-month extension may withdraw their applications and submit  new applications for the proposed 24-month extension.

STEM Definition Expanded:

• NPRM:  DHS will define a STEM field as a field included in the Department of Education’s CIP taxonomy, which will include more fields and greater clarity.

• 2008 IFR:  The STEM Designated Degree Program list includes courses of study in nine different categories.

Mentoring and Training Plan:

• NPRM:  The proposed rule requires that employers institute a formal mentoring and training program for the benefit of the student.  The student would be required to prepare a formalized Mentoring and Training Plan for submission to the student’s Designated School Official (DSO) in order for the DSO to recommend a STEM OPT extension in the student’s SEVIS record.  The student will also need to provide his or her DSO with an evaluation of his or her STEM OPT training program every six months, as well as a final evaluation at the conclusion of the program.

• 2008 IFR:  This provision does not exist in the current form.

Previously Obtained STEM Degrees:

• NPRM:  Students who have graduated from U.S. institutions with a STEM degree within the last ten years prior to the application, but have not requested a STEM extension, may request it only if the STEM degree is directly related to the occupation and is from an accredited school.

• 2008 IFR:  This provision does not exist in the current form.

*Note:  The NPRM will not allow a student to request two STEM OPT extensions immediately subsequent to one another.  Rather, the student will only be able to request a second STEM extension once a new initial post-completion OPT period has been completed.

Safeguards to U.S. Workers in Related Fields:

• NPRM:  U.S. employers will be required to provide a sworn attestation, as part of the Mentoring and Training Plan, affirming that the employer has sufficient resources and can provide mentorship and training; that the employer will not terminate, lay off, or furlough any U.S. worker in favor of the STEM OPT student; and affirm that the student will have all opportunities provided to him or her during the employment period.  In addition, to protect both the STEM OPT student and U.S. workers, employers will be required to provide compensation information in the Mentoring and Training Plan to confirm that the STEM OPT student will be compensated the same as “similarly situated U.S. workers.”  It is important to note that a DSO will not be able to recommend a student for a STEM OPT extension if the attestations are not provided.

• 2008 IFR:  This provision does not exist in the current form.

School Accreditation and Employer Site Visits:

• NPRM:  For a student to be eligible for a STEM OPT extension, the degree must have been granted by an educational institution accredited by an accrediting agency recognized by the Department of Education.  DHS’s Immigration and Customs Enforcement (ICE) has the discretion to conduct “on-site reviews” to ensure compliance by employers.

• 2008 IFR:  This provision does not exist in the current form.

Compliance Requirements:

• NPRM:  The proposed rule includes additional provisions for the student and the program to ensure the integrity of the program, including the following:  1) the employer must report to the relevant DSO within 48 hours when an F-1 student terminates the employment; 2) students granted a STEM OPT extension are required to report to their DSO every six months to confirm biographical information; 3) the employer must have a valid Employer Identification Number; 4) students must provide evaluations of their training progress every six months; 5) there will be an allowance for an additional 60 days of unemployment during the STEM OPT period, in addition to the 90 days allowed for the initial period of post-completion OPT; and 6) a student must file his or her Application for Employment Authorization within 60 days of the date the DSO enters the recommendation.

• 2008 IFR:  This current provisions include the following:  1) the employer must report to the relevant DSO within 48 hours when an F-1 student terminates the employment; 2) students granted a STEM OPT extension are required to report to their DSO every six months to confirm biographical information; and 3) a student must file his or her Application for Employment Authorization within 30 days of the date the DSO enters the recommendation.

E-Verify and Reporting Requirements:

• NPRM:  DHS will continue to require that an employer be enrolled in an E-Verify program in order for the student to request a STEM extension.

• 2008 IFR:  An F-1 student may only request a STEM extension if the employer is enrolled in the E-Verify program.

Cap-Gap Extensions

• NPRM:  All cap-gap provisions will remain the same, where a student will be permitted to remain in the U.S. with valid work authorization so long as the H-1B cap petition for a start date of October 1 of that year has been timely filed and a request for a change of status has been submitted.

• 2008 IFR:  A student is currently permitted to remain in the U.S. with valid work authorization so long as the H-1B cap petition for a start date of October 1 of that year has been timely filed and a request for a change of status has been submitted.

Comments to the NPRM are due November 18, 2015.   GT will continue to monitor the progress of this NPRM and provide updates.