On March 11, 2016, the U.S. Department of Homeland Security published a new STEM Final Rule to be effective on May 10, 2016. The two largest long-term changes of the rule involve:
(1) expanding the maximum STEM EAD allowance from the previous maximum of 17 months to the new maximum of 24 months; and
(2) implementing a new requirement that each STEM EAD applicant present a training plan approved by their designated school officer (DSO).
Because the new rule does not go into effect until May 10, 2016, implementation of the new rule will have differing effects on individuals depending upon each applicant’s EAD expiration date. Please see the Q&As below for details on how the new rule may affect you. Please contact us for case-specific questions as we will be happy to assist you with the process and know that this update is not a substitute for legal advice given the complexity of this transition in EAD policy.
My EAD expires on or before June 15th, 2016. What should I do to secure my STEM OPT EAD and ensure continued work authorization?
For those clients we represent we will encourage those with OPT EADs expiring on or before June 15, 2016 to request an endorsed I-20 from their DSO and file an I-765 application for a STEM OPT EAD without a training plan as soon as possible, so that USCIS receives the application and the student’s work authorization is thereby extended automatically. If it is not possible to secure the endorsed I-20 from their DSO before May 10, 2016 (the first day on which DSO’s will require the new training plan to issue the new I-20), the student should likely file the application without the I-20 as soon as he or she can. We advise students to seek assistance from counsel if they are in this situation.
We recommend this approach because long delays are expected for DSO-approval of the training plans making filing in mid to late May improbable. The delays are expected given that SEVIS will not be updated to match the new rule until at least May 12, 2016, the training plan form has not yet been officially published, and government comments in the new rule suggested DSOs will take at least 3x more time to approve I-20s under the new rule. In short, the earliest one might optimistically expect a DSO to issue an approved I-20 is likely late May. Waiting until DSOs learn the new rule and are comfortable with approving training plans poses an uncertain timeframe, so we suggest filing without a training plan before the new rules take effect to ensure timely receipt of the application.
While one is likely to receive an RFE under this approach, the RFE will allow sufficient time to respond with a properly executed training plan. Most importantly, filing before the new rule takes effect will ensure that there is no gap in work authorization given that the authorization is automatically extended for F-1 EAD holders who timely file an extension.
My EAD expires after June 15th, 2016. What should I do to secure my STEM OPT EAD and ensure continued work authorization?
While we encourage those with OPT EADs expiring after June 15, 2016 to be proactive, we do not feel it is necessary to file an I-765 prior to enforcement of the new rule. That is, there should be sufficient time to establish the training plan, get the plan and I-20 approved by your DSO, and file to continue to your work authorization. Please plan ahead to allow at least two weeks for your DSO to review and approve your training plan. We will be happy to help you along with this process. As mentioned above, timely filing before the expiry of your current EAD will automatically extend your work authorization during the pendency of the application.
My EAD has expired or is about to expire. Can I file my STEM OPT EAD extension after the expiration?
No. If your STEM extension is not timely filed, you lose eligibility for the benefit. That is, you cannot file your I-765 late and remain eligible for an EAD extension. USCIS must receive your I-765 application the day before your expiration. Please note: USCIS only receives applications on weekday (excluding government holiday) so it is important to plan ahead to ensure timely receipt.
EADs typically take 90 days to adjudicate. Will I be allowed to work while my STEM OPT EAD application is pending?
Yes. So long as USCIS receives your I-765 application before your current EAD expires, you will remain authorized to work during the pendency of the application.
I currently have a STEM OPT EAD. How does the new rule affect me?
Between May 10th, 2016 and August 8th, 2016, those who already have a STEM OPT EAD extension and have 150 days left on their current STEM OPT EAD may file for a 7 month extension. To be clear, in order to be eligible for this benefit, the applicant must have 150 days remaining on his or her EAD at the time USCIS receives the 7-month extension application. Please note that this means that if your current STEM OPT EAD expires prior to October 7, 2016, you are not eligible for this extension because there is no time during the filing window (5/10/16 – 8/8/16) in which you will have 150 days left on your current EAD. Those who file for the extension will also be subject to the training plan requirement.
How will this new rule affect my ability to travel?
In reality, the same rule as before applies – if you travel outside the US and you do not have an unexpired EAD and valid visa, you will not be able to re-enter and your I-765 application will be deemed abandoned. Therefore, we encourage those working in the U.S. with a pending I-765 application for a STEM OPT EAD to remain in the U.S. until you have an unexpired EAD. We will update our readers and clients if and when this rule is changed at all.
I was selected in the H-1B Cap lottery and I have an OPT EAD that expires during the Cap Gap window (4/1/16 to 9/30/16). Is there any reason to apply for a STEM OPT EAD Extension?
While you can rely upon the Cap Gap provision to maintain work authorization and legal presence until the H-1B period begins on October 1, 2016, you may consider applying for a STEM OPT EAD instead because it will act as a back-up should anything unexpected happen with your H-1B petition. While our firm makes every effort to file approvable H-1B petitions, we do not ultimately control the government or the individual decision-maker. Nor can we control the economic conditions facing your industry/employer or personal performance. While we expect every H-1 we file to be approved and every individual to keep their job with their current employer there can be extenuating circumstances that intervene, including erroneous decisions. Know that if you miss the deadline to file a STEM EAD extension then the option no longer exists if something happens to the H-1 or position is it is for and the individual could then be without status to work or remain in the U.S. We recommend all individuals assess their own personal risks and do what is comfortable to ensure continued work authorization. As a general maximum, in immigration law, it never hurts to be conservative in one’s approach.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **