New F-1 Optional Practical Training Regulation Published

On March 11, 2016, Department of Homeland Security (DHS) published a new regulation with changes to the extra Optional Practical Training (OPT) available to foreign students on F-1 visas who complete degrees in certain Science, Technology, Engineering and Mathematics (STEM) fields. The new regulation takes effect May 10, 2016. Foreign students on F-1 visas who complete an academic program qualify for up to 12 months of OPT to gain experience related to their fields of study. The new regulation does not change the standard OPT program available to any F-1 student who completes a program. The new regulation only affects F-1 students who complete STEM degrees and apply for OPT beyond the standard 12-month OPT period. STEM graduates first apply for the 12-month standard OPT, and then apply for an extension of OPT, assuming all criteria are met. In addition to the STEM degree requirement, the employer must be enrolled in the DHS “E-Verify” program for verifying lawful employment status for new hires.

Students may obtain 12 months of standard OPT after completing successively higher educational levels – Bachelor’s, Masters, Ph.D., etc. Students may obtain a lifetime maximum of 2 STEM OPT extensions, also after successively higher educational levels. So, a student completing a STEM Bachelor’s degree could get 12 months of standard OPT, and a 24-month STEM extension. If that student returned to school to complete a Master's after completing the 36 months of standard plus STEM OPT, that student could obtain another 12 months of standard OPT plus another 24 months of STEM OPT after completing the Masters. That student would be eligible for another 12 months of standard OPT after completing a Ph.D., but not another 24 months of STEM OPT.

The new regulation extends the existing STEM OPT extension from 17 to 24 months, meaning a STEM graduate may obtain a total of 36 months of OPT when combining the standard 12-month OPT and 24-month STEM OPT. The new regulation also requires employers and students to complete a training plan document (Form I-983) as part of the application for STEM OPT. The “T” in OPT means training, rather than regular employment. This training plan requirement is a means by which DHS may determine whether the additional OPT period granted to a particular STEM graduate will impart new knowledge to the student, as opposed to simply benefiting the employer or the employer’s clients. In addition, the new regulation provides for DHS site visits to employer locations to ensure compliance with program requirements. The introduction to the new regulation indicates DHS will generally give notice prior to a site visit, unless the visit is triggered by a complaint of some evidence of noncompliance.

The rule also imposes reporting requirements, mostly on students and the Designated School Official (DSO) at the school from which the student obtained the STEM degree. The reporting requirements enable DHS to track the student’s address and to track terminations or changes in employment during the STEM OPT period.

This new rule will provide added flexibility for students and employers. It is not a substitute for the H-1B however, and students and employers who may desire a permanent residence status should still pursue an H-1B. The F-1, including OPT, remains a strictly nonimmigrant visa. Individuals who intend to immigrate permanently to the United States do not meet the definition of an F-1 foreign student. This means that pursuing permanent residence while in F-1 status carries certain risks of conflict between the nature of the F-1 status and the pursuit of permanent residence status. In a worst-case scenario, this conflict could result in the F-1 student being denied a visa to return to the United States, or the student being denied entry into the United States. The H-1B, by contrast, is defined differently under the immigration law, such that active pursuit of permanent residence status does not create any conflict with maintaining H-1B status. The H-1B will remain the best choice for intending immigrants.

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