New F-1 OPT Rules

DHS Releases Amended F-1 OPT Regulations to go into Effect May 10, 2016 Today the Department of Homeland Security (DHS) released amended regulations, which will expand optional practical training ("OPT") for students with U.S. degrees in science, technology, engineering, or mathematics ("STEM") and create new obligations for F-1 students and F-1 employers starting May 10, 2016.Extension period to increase from 17 to 24 months. Under the amended regulations, F-1 STEM students will be able to extend OPT for an additional 24 months beyond the initial 12-months, replacing the 2008 regulation that allowed F-1 STEM students to receive a 17-month extension of OPT, providing work authorization for employment related to their field of study.Reporting requirements for F-1 students and university officials. New reporting requirements include a six-month validation requirement, confirming the F-1 student applicant's application for work authorization through the OPT program. Second, F-1 students will be required to complete an annual self-evaluation for designated school officials to review. Third, there is an affirmative requirement for both F-1 students to report any change in employment status or material departure from the adopted Training Plan. This is in addition to the previous requirement for F-1 employers to report similar changes to the designated school officials within five business days, which remains in effect for F-1 employers.F-1 Employers Required to complete formal Training Plan with F-1 Student. The new regulations will also increase DHS oversight over the OPT program. In addition to the previous E-Verify requirement, F-1 employers will be required to complete a formal Training Plan, Form I-983, and comply with new wage requirements. F-1 employers will be required to set out the terms and condition of employment, including the specific duties, hours, and compensation.As part of the Training Plan, F-1 employers will attest that the F-1 employee is paid a salary commensurate with similarly situated workers and that: "(1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives."DHS to conduct on-site visits. The new regulations state that DHS has discretion to conduct employer site visits to ensure F-1 employers meet the requirements of the OPT program. Generally, DHS will be required to provide notice 48 hours prior to the inspection, unless the visit is conducted in response to a complaint or evidence of noncompliance.Cap-Gap Extension language clarified. DHS has revised the Cap-Gap extension regulation to clarify that the extension for F-1 students with pending H-1B petitions and requests for change of status will temporarily extend the OPT period until October 1, the beginning of the new fiscal year. The above information has been provided for informational purposes only. You should always consult with your Clark Lau LLC attorney to determine how this impacts your specific situation and what your options are. Also, a special thanks is extended to the Alliance of Business Immigration Lawyers (www.abil.com) of which Vince Lau is a member, for sharing their insights.