On October 19, the Department of Homeland Security (“DHS”) issued updated regulations for comment on the extension of Optional Practical Training (“OPT”) for F-1 students earning science, technology, engineering, and mathematics (“STEM”) degrees from U.S. universities and on “Cap-Gap” measures. The agency is doing so because similar regulations it issued in 2008 will be vacated in February 2016 due to ongoing litigation.
Foreign students who come to the United States to pursue higher education usually obtain F-1 visas. They are able to get practical job experience for 12 months through OPT. F-1 students with degrees in STEM fields can currently extend OPT for 17 months.
The new rules mainly propose a 24 month OPT extension for students in STEM fields. They also introduce measures to increase oversight of these extensions by requiring employers to implement formal training and mentoring plans, they add wage and other protections for STEM OPT students and U.S. workers, and will only allow extensions for students with degrees from accredited institutions.
The rules maintain “Cap-Gap” relief introduced in 2008. Some students in F-1 status change their status to H-1B workers once they have been hired by a U.S. employer. Most students cannot start working for the sponsoring employer until October 1, the earliest start date for most H-1B visas. Cap-gap relief allows certain students to extend their OPT period until September 30 to ensure they do not have gaps in status between the end of their OPT period and the beginning of their H-1B status.
The purpose of the regulations is to attract and retain foreign students with STEM field degrees which are in the U.S.’s economic, cultural, and security interests.
Comments on the regulations are due by November 18, 2015.
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