Effective May 10, 2016, graduate students on an F-1 visa who are on a STEM OPT (12 months) may apply for a 24 month (versus 17) extension.

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The Final Rule, published by the Department of Homeland Security on March 11, conceivably provides employers with three chances to apply for an H-1B immigrant visa following the student’s graduation from an accredited school.  However, if it looks too good to be true…it probably is.  There is, as always, a caveat. DHS oversight of the work these students are performing will be increased. Effective May 10, 2016 for new extensions, DHS may conduct unannounced site visits; employers will be required to implement formal training plans prepared with the OPT student (identifying learning objects and plan for achieving them); the students must be paid wages the same as other “similarly situated” employees; and there has to be certain protections for US workers. Specifically, employers will have to attest that “(1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity helps the student attain his or her training objectives.” Additionally, students will have to self-evaluate each year, and the employer will be required to sign off on their evaluation concerning their training progress. Notably, any “material” changes or deviations from the formal training plan will need to be reported to the Designated School Official.

Unchanged, employers must still participate in E-Verify who seek an OPT extension. Also unchanged, the cap-gap automatic extension will remain so students are not out of status between the expiration of their OPT and the October 1 start date for an H-1B change of status. Qualifying student-Employees currently on a 18 month extension may request a modified extension (get the additional 7 months) under a few different paths – but only have until August 8, 2016 to apply.