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.

Are you that “certain someone”?  That “certain spouse” of an H-1B worker who will be eligible for H-4 work authorization?  Not sure?  Here’s the scoop.

At long last, on Wednesday, February 25, 2015, the US Department of Homeland Security (DHS) published a Federal Register Notice captioned, “Employment Authorization for Certain H-4 Dependent Spouses; Final Rule”.   Per the much-awaited Notice, on May 26, 2015 (NOT earlier), USCIS will begin accepting applications from eligible applicants in H-4 status, but H-4 work authorization will not be available to all who hold H-4 status.  The chosen few, those “certain spouses” who will be eligible for H-4 work authorization include:

  • An H-4 spouse of an H-1B worker with an approved I-140, or
  • An H-4 spouse of an H-1B worker who has been granted a 7+ year extension of H-1B time pursuant to AC21 Sections 106(a) and (b).  (Note that an H-4 spouse of an H-1B worker granted a 7+ year extension under AC21 Section 104(c) would be covered under the first bullet point.)

So, not all H-4 dependent spouses will qualify to apply for an H-4 EAD (employment authorization document).  H-4 children are also ineligible.

An H-1B worker who is running out of H-1B time may want to consider whether it makes sense to change to H-4 status and seek work authorization—that is, if married to an H-1B worker who would enable the work authorization criteria to be met. Fortunately, there is a provision for concurrent filing of the H-4 application and the EAD application.

Typically, it takes about 90 days from the date of USCIS receipt of an EAD application for the EAD card to be issued.  It’s not clear whether it will take longer given that there is likely to be a very large number of filings seeking H-4 work authorization.

Careful consideration and strategizing must be undertaken to determine eligibility, the best course of action, and timing.  Please feel free to contact us if you need assistance.


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


On May 12, 2014, the US Department of Homeland Security (DHS) issued a Proposed Rule that would amend provisions of the US Citizenship and Immigration Service’s (USCIS’s) Regulations regarding work authorization for certain H-4 nonimmigrants.

An H-4 nonimmigrant is the spouse or child of an H-1B worker.  H-4 status does not currently provide eligibility for work authorization.

In a bold and seemingly well-considered move, DHS is proposing to change this.  Employment eligibility would not, however, be open to all who are in H-4 status.  Instead, if the proposed measure stands as it is, it would enable an H-4 spouse to apply for employment authorization if:

  • The H-1B spouse is either the beneficiary of an approved I-140 Immigrant Petition for Alien Worker, or
  • The H-1B spouse has been granted an extension of his/her authorized period of admission under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), as amended by the 21st Century Department of Justice Appropriations Authorization Act. (Generally summarized, this is the provision which permits an H-1B petition to be extended beyond 6 years if the H-1B worker is the beneficiary of either a PERM application or I-140 petition pending for at least 365 days prior to reaching the 6th year of H-1B time.)

The stated goal in permitting certain H-4 nonimmigrants to apply for work authorization is the country’s interest in “attracting and retaining high-skilled foreign workers” for the benefit of the US economy, US employers, and alleviating possible economic burdens on the families of H-1B workers.  The benefit is also meant to encourage foreign workers who are stuck in what seems like an endless delay toward becoming US permanent residents, to remain in the US until the greencard process can be finished (i.e., a visa number becomes available and the case can be processed to conclusion).  In summary, if due to a priority-date backlog, an H-4 spouse can’t file an I-485 application to be eligible for employment-authorization, the Proposed Rule is the “fix” to permit the filing of the employment card application.

This proactive measure may also inadvertently help alleviate problems for US employers resulting from the limit on H-1B numbers.  Presumably, at least some of H-4 spouses were the beneficiaries of H-1B petitions that were selected in the H-1B cap lottery (and took a highly prized H-1B number) or were not selected (leaving a US employer without its prospective employee).

On another note, an interest of the country is also family unity.  Although this isn’t an economic interest, it would seem to me that consideration should be given to opening up eligibility for employment authorization to any spouse of a foreign worker who is maintaining lawful status and is the beneficiary of a Family-Based petition in a severely
retrogressed category.  Perhaps not many people would benefit, but…it’s a thought.


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