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

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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QUESTIONS & ANSWERS