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Immigration Law

DHS Proposed F-1 Rule: Cap-Gap Relief and STEM OPT Improvements

Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015

Improving and Expanding Training Opportunities for F–1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F–1 Students

"The Department of Homeland Security (DHS) proposes to amend its F–1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Specifically, the proposal would allow such F–1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension would effectively replace the 17-month STEM OPT extension currently available to certain STEM students. The rule also improves and increases oversight over STEM OPT
extensions by, among other things, requiring the implementation of formal mentoring and training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools.

As with the current 17-month STEM OPT extension, the proposed rule would authorize STEM OPT extensions only for students employed by employers enrolled in U.S. Citizenship and Immigration Services’ (USCIS’) E-Verify employment eligibility verification program. The proposal also includes the ‘‘Cap-Gap’’ relief first introduced in 2008 for any F–1 student with a timely filed H–1B petition and request for change of status. This Cap-Gap relief
allows such students to automatically extend the duration of F–1 status and any current employment authorization until October 1 of the fiscal year for which such H–1B visa is being requested.

In addition to improving the integrity and value of the STEM OPT program, this proposed rule also responds to a court decision that vacated a 2008 DHS regulation on procedural grounds. The proposed rule includes changes to the policies announced in the 2008 rule to further enhance the academic benefit provided by STEM OPT extensions and increase oversight, which will better ensure that students gain valuable practical STEM experience that supplements knowledge gained through their academic studies, while preventing adverse effects to U.S. workers. By earning a functional understanding of how to apply their academic knowledge in a work setting, students will be better positioned to begin careers in their fields of study. These on-the-job educational experiences would be obtained only with those employers that commit to developing students’ knowledge and skills through practical application. The proposed changes would also help ensure that the nation’s colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.

DATES: Comments must be received by DHS on or before November 18, 2015. Comments on the information collection provisions proposed in this rule must be received by DHS and the Office of Management and Budget (OMB) on or before November 18, 2015."