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Albany Legal Blog

Proposed STEM OPT Extension and “Cap Gap” Relief

On Behalf of | Nov 12, 2015 | Immigration

female scientist

On October 19, 2015, the Department of Homeland Security (“DHS”) published a notice of proposed rulemaking in the Federal Register seeking to improve and expand training opportunities for F-1 nonimmigrant students with science, technology, engineering or math degrees (commonly referred to as “STEM” degrees). The rule also proposes to expand what is called “cap-gap” relief for all eligible F-1 nonimmigrant students.

While this is a welcome regulation, and there’s a litigation aspect to it that I will not get into here (but probably should given my audience), the fact that we need this regulation at all is just another example that our immigration system is broken.

A brief primer on “practical training.”  Practical training may generally be defined as experiential learning, including paid employment or an unpaid internship, directly related to a student’s major area of study.  It may be authorized for F-1 nonimmigrant students who have been enrolled in a DHS-approved college, school, university, conservatory, or seminary for one full academic year.  There are two kinds of practical training available: (1) curricular practical training; and (2) optional practical training (“OPT”). OPT is the subject of this article.

Generally, students may be authorized for up to 12 months of OPT at each higher level of postsecondary education.  For example, a student may take 12 months of OPT during his or her bachelor’s level, an additional 12 months at his or her master’s level, and an additional 12 months at his or her doctoral level.

It is typically during OPT that a student identifies an employer that may wish to sponsor him or her for longer term temporary or permanent employment.  That requires the employer to sponsor the student, more often than not by filing a petition with U.S. Citizenship and Immigration Services (“USCIS”) to change the student’s nonimmigrant status, usually to an H-1B nonimmigrant worker status.  The problem is, there are more employers wishing to petition for their workers than there are H-1B visas available, and often both employer and student are shut out of the H-1B program as a result.

A related and important issue is that typically a student’s post-completion OPT will run out months before he or she will be eligible for H-1B nonimmigrant worker status, assuming they were one of the lucky ones to be selected.  This brings in the concept of the “cap-gap.”

Spring postsecondary school graduates often face a gap in their period of authorized stay in the United States.  Typically it is the period between the end of their OPT and the beginning of their H-1B nonimmigrant worker status (which is generally October 1, the first day of the government’s fiscal year).  To deal with this, DHS issued an interim final rule in April, 2008 (the same rule that created the STEM extension and which is the subject of the litigation that I am not writing about), commonly referred to as the “cap gap rule.”  It offers an “automatic” extension of the student’s F-1 nonimmigrant status, including any OPT employment authorization that may have been authorized, until October 1 of the fiscal year for which a student is the beneficiary of a timely filed H-1B petition requesting a change of status to H-1B nonimmigrant worker status.  This regulation essentially provides continuing work authorization during the “cap gap” for students engaged in post-completion OPT who are also the beneficiaries of such H-1B petitions.

Under the 2008 interim final rule, F-1 nonimmigrant students who earn a degree in a STEM field may be eligible for an extension of their post-completion OPT for up to 17 months, for a total of 29 months of OPT.  U.S. Immigration and Customs Enforcement’s (“ICE”) Student and Exchange Visitor Program (“SEVP”) has designated certain Classification of Instruction Programs (“CIP”) codes assigned to major fields of study to constitute the eligible “STEM fields.”  While a student may be eligible for additional periods of OPT at each higher level of study, the STEM extension is a one-time benefit, and may be granted only if a student is currently engaged in OPT based on a STEM degree.  (To be eligible for a STEM extension, a student must also have an employer who is enrolled in the E-Verify program.)

The new rule would, among other things, extend the STEM OPT period to 24 months, allow an additional period of OPT for subsequent degrees, and even provide STEM OPT eligibility for a prior degree.  Very importantly for practitioners in this area, the rule also clarifies which occupations qualify.  The new rules also leaves open the possibility of adding eligible fields in the future.  Finally, and importantly, the new rule provides continued “cap gap” relief.

These changes are critical to attracting foreign students to our colleges and universities, and to encourage the pursuit of practical training from leading, innovative businesses in the United States. U.S. businesses that provide STEM OPT training opportunities benefit from this program through employee retention and a strengthened market position both domestically and abroad.
Once again, however, I will stand on my soap box and say our country still needs comprehensive immigration reform.  For the time being, however, we’ll once again need to satisfy ourselves with these regulatory “baby steps.”