In this short series on the new STEM OPT rules, Susan Cohen, Chair of Mintz Levin's Immigration Section will examine the top takeaways for students and their employers. The second post will focus on the expansion of the regulation and related changes and reporting requirements for students.
Expansion of STEM OPT Eligibility
Even if you have not yet completed a thesis or dissertation requirement, you may still apply for a STEM OPT extension, as long as you have completed all other requirements for your degree. Note that this exception applies only to your current degree program. If you earn another STEM degree in the future, you will be able to apply for a second STEM OPT extension, following a standard 12-month post-completion OPT period. No more than 2 lifetime STEM OPT extensions are permissible.
If you are in a period of post-completion OPT based on a non-STEM degree, but you have a prior STEM degree from an accredited U.S. educational institution, you may apply for a 24-month STEM OPT extension, if you will be using the knowledge and skills gained in your prior STEM degree in your OPT employment.
If you apply for a STEM OPT extension based on a prior degree, the following rules apply:
- The prior degree must have been conferred no more than 10 years before the DSO recommends the STEM OPT extension in SEVIS;
- The institution from which you earned the prior degree must be accredited and SEVP-certified at the time the DSO makes the recommendation in SEVIS;
- The work that you will do in your STEM extension practical training period must relate to the knowledge you gained in the prior degree program; and
- The prior degree must have been conferred.
Your Reporting Obligations
You and your prospective employer must work together to complete and sign off on form I-983 “Mentoring and Training Plan” and you must submit this form to your DSO before the DSO may recommend your STEM OPT extension in SEVIS. In form I-983 you and your employer are required to explain how the training relates to your qualifying STEM degree, identify specific goals for the training, and describe how your progress will be monitored and evaluated.
Updating Your DSO:
Every 6 months during your STEM OPT extension period you must update your DSO regarding the following information:
- Your legal name;
- Your residential or mailing address;
- Your employer’s name and address; and
- The status of your practical training experience
If any of the above information changes or if you become unemployed, you are required to report this information to your DSO within 10 days of the change.
If you change your STEM OPT position (change employers), OR if the nature of your STEM OPT practical training undergoes a “material change”, within 10 days of the change you must submit a new form I-983 to your DSO.
During the course of your 24-month STEM OPT period you must complete and submit to your DSO two self-evaluations (by completing the self-evaluation portion of form I-983): you must complete the first self-evaluation within 12 months of the start date of your STEM OPT and you must complete the second (final) self-evaluation on form I-983 at the end of your 24-month STEP OPT extension.
Wages and Working Conditions:
There are several changes to the STEM OPT extension that differ from what is allowed for regular post-completion OPT and also what was allowed under the prior 17-month STEM OPT extension rules.
- Volunteer/unpaid positions cannot support a STEM OPT extension
- Self-employment cannot support a STEM OPT extension
- If you founded your own start-up company, you may still engage in a STEM OPT extension as long as: you are paid by your company in a fashion that is commensurate with the terms and conditions of employment offered by your company to other employees; there is a bona fide employer-employee relationship between you and your company and you do not sign off as the employer on form I-983 (another employee of your company must sign off on the employer attestations on form I-983)
- Under standard post-completion OPT you may not be unemployed for more than 90 days and under the new 24-month STEM OPT extension rules, you may not be unemployed in total (combined standard post-completion OPT plus 24-month STEM OPT extension) for more than 150 days