With the end of STEM OPT looming, the US Department of Homeland Security (DHS) published a much-awaited Proposed Rule on October 19, 2015, regarding STEM OPT and Cap-Gap Relief.  (See https://www.federalregister.gov/articles/2015/10/19/2015-26395/improving-and-expanding-training-opportunities-for-f-1-nonimmigrant-students-with-stem-degrees-and.)

Highlights of the Proposed Rule, captioned “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students”, include:

  • 24-months of employment authorization, an increase of 7 months from the current 17-month extension period (up to two times if the 2nd is based on a higher degree);
  • Oversight of STEM OPT extensions would be increased by such things as:
    • Formal employer Mentoring and Training Plans,
    • Wage and other protections for STEM OPT students and U.S. workers, and
    • Extensions only for students with degrees from accredited schools.

STEM OPT is “optional practical training” (OPT) for certain students who have earned degrees in a science, technology, engineering, or mathematics (STEM) field from a U.S. institutions of higher education and who will be employed by employers enrolled in E-Verify.  E-Verify is the Immigration Service’s (USCIS’s) electronic employment eligibility verification program.

The Proposed Rule, released after the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security case, includes a provision to continue “Cap-Gap” relief.  Cap-Gap relief, which was first introduced in 2008, enables an employer to continue uninterrupted employment of a student during the period after 12-month OPT ends and before October 1st when H-1B status may begin following a year when demand for H-1B numbers exceeds supply.  (For more information regarding the Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, see Robert Whitehill’s ImmigrationView posts at https://immigrationview.foxrothschild.com/employment-verification-compliance-including-i-9s-e-verify-and-enforcement/stem-opt-in-jeopardy-after-judges-order/ and https://immigrationview.foxrothschild.com/general-immigration-news-and-updates/future-of-stem-opt-extension/.)

It is stated that the changes set forth in the Proposed Rule should:

  • Better ensure that students gain practical STEM experience that supplements their academic studies, while also preventing adverse effects to U.S. workers.
  • Enabling students to earn a functional understanding of how to apply their academic knowledge, thus better positioning them for careers in STEM fields.
  • Limiting STEM OPT employment to work with employers that commit to developing students’ knowledge and skills through practical application.
  • Ensuring that US colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.

Presumably, if implemented, the changes will provide a sense of stability to US employers in need of highly valued STEM OPT employees, but who face concerns that an H-1B lottery number may not be available for the employment to continue beyond 12 months, as well as to students with STEM OPT employment authorization who had incentive to use their STEM education abroad due to uncertainty here.  The comment period is open until November 18th so the Final Rule may include changes, but the Proposed Rule seems like a good start.


Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.