Grace period to stay in US, if employer files for H-1B visa.
By Sujeet Rajan
NEW YORK: F-1 visa students who are enrolled in the STEM (Science, Technology, Engineering, Math) fields of study from accredited educational institutions in the United States will be allowed, beginning from May 10, 2016, to work for as long as three years under the Optional Practical Training (OPT).
The Department of Homeland Security released its final rule in this matter, which will be published in the Federal Register Friday, March 11. The rule goes into effect on May 10, 2016, which means that all students who are either under OPT till that date, or who qualify for OPT by then, will be able to work further, for a period totaling 36 months.
STEM students who are availing their extension of 17 months under OPT – after their initial OPT of 12 months got over – and will be done with that on May 10, 2016, or later, will be able to file to extend their OPT by further seven months.
However, for students who are not in STEM tracks of study, the OPT remains the same at 12 months.
Also, significantly, the rule by the Department of Homeland Security extends cap-gap protection for those H-1B petition beneficiaries that are selected in the H-1B cap. Under the new rule, an F-1 visa student’s duration of status and employment authorization are automatically extended until September 30 if an H-1B petition is timely filed on behalf of the student, and approved by U.S. Citizenship and Immigration Services.
In light of this new rule, employers should review their OPT population to determine which workers will be eligible for further STEM extensions, according to the top law firm Greenberg Traurig.
U.S. employers should also verify whether these employees need to change to H-1B status to ensure there is no interruption in their U.S. work authorization beyond the expiration of their OPT. U.S. employers should plan to file all H-1B cap petitions for 2017 by March 31, 2016, keeping in mind the new factors affecting this year’s H-1B cap season.
The extended OPT time period offers a number of benefits to foreign students and US employers that wish to hire them, according to Greenberg Traurig. By defining fields of study that qualify for STEM in accordance with the Department of Education’s Classification of Instructional Program (CIP) categories, the new rule expands on the permissible fields of study that were authorized under the old STEM rule.
Notably, increasing OPT work authorization from 29 months to 36 months will give F-1 visa STEM OPT holders more chances at being selected for an H-1B visa number in the annual H-1B lottery. The rule also redresses the U.S. District Court for the District of Columbia’s vacatur of the 2008, 17-month Optional Practical Training (OPT) STEM Extension rule, and part of the contentious legal battle surrounding the overall validity of the STEM extension program, which is expected to be decided by a Federal court in May.
Anti-immigration activists have for long have been trying to clamp down on the H-1B visa and the OPT for F-1 visa students, saying it takes away jobs from American workers. The ruling in May would be significant considering the new changes finalized by the Department of Homeland Security for F-1 visa students.
In addition to offering significant benefits to STEM F-1 visa students, the rule imposes additional compliance requirements on STEM OPT workers and the U.S. employers who hire them, according to Greenberg Traurig.
- STEM OPT students, with the cooperation of their employers, will be required to prepare and execute a formal training plan that identifies learning objectives and plans for achieving those objectives.This information will be collected on Form I-983, Training Plan for STEM OPT students. Employers will also need to evaluate student progress by signing an evaluation on an annual basis – the first one during the initial 12-month period and the final one at the conclusion of the STEM OPT extension.
- STEM OPT students must inform their designated school official (DSO) about any name or address changes, and any changes to their employers’ names or addresses.
- Employers hiring STEM OPT workers will be required to guard against adverse action to full- or part-time U.S. workers by ensuring the STEM OPT employee’s duties, hours, and compensation are commensurate with similarly situated U.S. workers; the company has sufficient resources and trained personnel available to provide training in the specified opportunity; and the opportunity will help the student attain his or her training objectives.
- Employers will be required to attest that they are not replacing full- or part-time, temporary or permanent U.S. workers with STEM OPT students.
- STEM extensions will only be available to students with degrees from schools accredited by an accrediting agency recognized by the U.S. Department of Education.
- Employers must notify the foreign student’s DSO within five business days of when a foreign student terminates or leaves his or her employment before the end of the authorized OPT period.
- Under the new rule, DHS will conduct announced and unannounced employer-site visits to ensure that employers and foreign students are following the formal training programs that were provided earlier to DHS to obtain STEM OPT extensions.These site visits are designed to reduce fraudulent use of the F-1 status. DHS will provide a notice of inspection at least 48 hours prior, unless the site visit is the result of a complaint or potential noncompliance with the STEM OPT extension regulations.