New Rule, New Requirements for Extended Optional Practical Training Period for Foreign Students

A new rule from the U.S. Department of Homeland Security became effective for a 24-month STEM OPT (Science, Technology, Engineering and Math Optional Practical Training) period. Pursuant to this rule, foreign students who have earned STEM degrees from schools that are accredited by a U.S. Department of Education-recognized accrediting agency and that are certified by the Student and Exchange Visitor Program (SEVP), and who have been granted OPT and are currently in the valid period of OPT, can quality for a 24-month extension of their OPT.

In addition to extending the STEM OPT period from 17 to 24 months, the new rule imposes additional obligations on employers. Specifically, the employer must now:

  1. Report material changes on the employment to the STEM OPT student’s Designated School Official (DSO) within five business days
  2. Implement a formal training program to augment the student’s academic learning through practical experience
  3. Provide an opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours and compensation
  4. Complete the appropriate sections of Form I-983, Mentoring and Training Plan. In this form, the employers must attest that:
    • They have enough resources and trained personnel available to train the foreign student
    • The student will not replace a full- or part-time, temporary or permanent U.S. worker
    • Working will help the foreign student attain his or her training objectives
  5. Prove that there is a bona-fide employer–employee relationship.

U.S. Immigration and Customs Enforcement may now visit employers’ worksites to verify whether all STEM OPT requirements are met.

The obligation to be enrolled in E-Verify did not change under the new rule.

Preparing Form I-983 and devising an appropriate training program are complex tasks. Our office can assist in completing this form, and in providing training sessions for your HR department. We also have strategies for start-up founders to learn how to comply with the employer–employee relationship requirement. Please contact us with any questions.

Didn’t Win the H-1B Visa Lottery? Consider Plan B

In July 2015 Jay received the bad news: his H-1B visa petition did not win the annual H-1B lottery. His OPT was expired and his 60-day grace period was down to two weeks. After we met to discuss Plan B options, Jay enrolled in a master’s degree program that offered CPT work authorization during his first semester. His F-1 status was extended and both Jay and his employer were thrilled. Now, as Jay is set to graduate next month, he waits on edge as receipts announcing the winners of this year’s H-1B lottery arrive daily at my office, none yet with Jay’s name.

Nearly two-thirds of the 237,000 H-1B petitions filed this year with the U.S. Citizenship and Immigration Services will not win the lottery, and I receive daily phone calls from those who fear that they will not be among the winners. I offer my thoughts, which often include some “Plan B” options that many of the callers did not know about: O-1 visas for people of extraordinary ability or achievement, for which we are getting a lot of approvals; E-2 visas for treaty investors; and J-1 visas for trainees and interns.

Sometimes the best option is for a client’s spouse to receive an E-2, L-1 or J-1 visa, which allow for a spouse to work. Last year we had a client who lost the H-1B lottery and after we heard that his wife had a managerial job in Paris with a multinational company, we were able to get the wife an L-1 visa to work for the U.S. office of her company, and our client received an L-2 visa with a work authorization card. Everyone is happy.

Many clients have also had success in obtaining “cap-exempt H-1B” visas under either of two options:

If a cap-exempt organization such as a university obtains a part-time H-1B for a foreign national employee, then any U.S. employer (even a private company who is not normally cap-exempt) may piggyback on the cap-exempt H-1B and immediately file for its own full-time, cap-exempt H-1B with the employee working concurrently for both the cap-exempt organization and the private company.
Any U.S. employer, including a private company that is not normally cap-exempt, may immediately file its own cap-exempt H-1B if the private company locates the foreign national worker “at a cap-exempt organization” (such as renting a seat at a University’s Innovation Center), as long as it is true that the job duties of this employee directly and predominately further the normal, primary or essential purpose, mission, objectives or function of the cap-exempt organization.

USCIS Reaches FY 2017 H-1B Cap

USCIS has announced that once again the H-1B cap has been reached in the first week of April, and they will be accepting no more cap- H-1B petitions until next fiscal year. FedEX has confirmed timely delivery to USCIS of all of the H-1B petitions our office filed last week.  USCIS is not yet able to announce the date it will conduct the random selection process. Historically the lottery results have been announced mid May to early June.

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