H-1B Cap and F-1 STEM OPT Update H-1B Cap and F-1 STEM OPT Update

H-1B Cap and F-1 STEM OPT Update

As expected, United States Citizenship and Immigration Services (“USCIS”) announced last week that the H-1B quota for fiscal year 2017 has been reached. The immediate exhaustion of available H-1B visas, which has now been the case for four consecutive years, results in a computer-generated “lottery” to select the cases which will be processed. USCIS’ announcement on the timeline for that lottery and number of total applications received is expected soon. As only 85,000 new H-1B visa petitions can be approved under the quota (65,000 under the regular H-1B “cap” and 20,000 under the Master’s degree exemption), hundreds of thousands of foreign national professionals will likely be left searching for other options. 
Among those with the best alternatives are certain F-1 foreign students who qualify for an extension of their existing employment authorization. F-1 students are generally eligible for up to 12 months of Optional Practical Training (“OPT”) employment authorization upon graduation from an accredited U.S. college or university, which permits them to work for any U.S. employer in a position relevant to their degree. To date, F-1 students who earned U.S. degrees in a qualifying science, technology, engineering, or mathematics (“STEM”) field AND whose employers are enrolled in the federal E-Verify program are eligible for up to 17 months of additional OPT. Effective May 10, 2016, a new rule extends and modifies that STEM OPT extension option.
Extension of STEM OPT to 24 months is welcome news to many F-1 foreign students, as it offers continued employment authorization, and for many, another opportunity under a subsequent year’s H-1B cap for those who qualify. The STEM field and E-Verify requirements still apply, but the rule offers additional new benefits, most notably that the STEM OPT extension can be based on a previously obtained U.S. STEM degree that is not serving as the basis for the current period of OPT (e.g., an applicant could qualify for the STEM OPT extension based on his U.S. Bachelor’s degree in mathematics, even though his current OPT is based on his recently earned MBA, which is not a STEM degree). Therefore, far more F-1 students are expected to qualify for the 24-month STEM OPT extension when the new rule goes into effect.
The new rule includes several critical transition requirements affecting F-1 students who already hold OPT or have pending applications. Where an application for STEM OPT is still pending when the new rule becomes effective on May 10, 2016, USCIS will issue a Request for Evidence for documentation confirming the applicant is eligible for the extension under the new rule.  F-1 students who have already obtained the 17-month OPT extension by May 10, 2016 can request an additional 7 months to reach the new 24-month maximum, but only if the application is submitted between May 10 and August 8, 2016 AND the applicant has at least 150 calendar days remaining on the current 17-month OPT extension. All other STEM OPT eligibility requirements continue to apply.
Despite the new benefits offered under the new STEM OPT rule, there are some additional conditions and requirements.  F-1 foreign students will have additional reporting obligations to their Designated School Official in the event of changes to their name, address, employer, and employment status, and they must complete two self-evaluations at designated times during the STEM OPT period. The Employer will also be required to make several attestations on Form I-983 as part of the STEM OPT application filing regarding the Employer’s overall compliance and specifically, with respect to the F-1 foreign student’s working conditions, compensation, training, and performance evaluation and supervision.  Employers are also subject to Department of Homeland Security site visits designed to verify that program requirements are being met.
A substantial number of foreign national professionals will benefit from this new STEM OPT rule. Those without qualifying STEM degrees, those with current STEM OPT expiring in the near future, and foreign nationals without F-1 foreign student status at all, however, will remain immediately impacted by the limited H-1B numerical quota and lottery results. 
To discuss STEM OPT eligibility and other possible H-1B alternatives, please contact Christl P. Glier, Jenifer M. Brown, or any member of Ice Miller's Immigration Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.  
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