November 24, 2015Client Alert

STEM OPT and Green Card Portability Rules Continue to Evolve

In October 2015, the Department of Homeland Security (DHS) issued a proposed rule to increase the validity period of Optional Practical Training (OPT) work authorization for certain F-1 students with degrees in science, technology, engineering or mathematics (STEM). Currently, such students may hold an initial 12-month period of OPT work authorization and then may seek a 17-month STEM OPT extension if they are working for an employer that participates in E-Verify. The proposed rule would replace the 17-month STEM OPT extension with a 24-month STEM OPT extension. Further, the proposed rule seeks to improve and increase oversight of STEM OPT extensions by requiring formal mentoring and training programs by employers, implementing wage protection measures for STEM OPT students and U.S. workers, and ensuring that STEM OPT extensions are available only to students with STEM degrees from accredited schools.

The proposed rule responds to a decision by a U.S. district court issued in August 2015, which will serve to terminate the STEM OPT extension program on procedural grounds unless a new rule is in effect by February 12, 2016. The court found that U.S. Citizenship and Immigration Services (USCIS) implemented the STEM OPT extension program in 2008 without conducting a proper public comment process. The comment period for DHS's new proposed rule was recently completed. If the agency moves quickly, it may finalize the rule before the February 12, 2016 deadline, avoiding disruption of the STEM OPT extension program.

In addition to its efforts to maintain the STEM OPT extension program, DHS has recently issued a draft policy memorandum to provide clarity related to job portability for green card applicants. Specifically, the draft memorandum provides guidance to USCIS Immigration Service Officers (ISOs) in determining whether an individual’s new job is in the “same or similar” occupational classification as the individual’s original job offer. Consistency and efficiency in such matters, which the draft memorandum seeks to promote, is essential, as green card applicants are allowed to change jobs or employers without starting the green card process anew only if: (i) the individual’s employment-based I-485 application the final major step in the green card process has been pending for at least 180 days; and (ii) the individual’s new job is in the same or similar occupational classification as the job for which the I-140 petition, the second major step in an employment-based green card process was filed.

The draft memorandum instructs ISOs on how they may use the Department of Labor’s Standard Occupational Classification codes and other evidence to determine whether the individual has moved to a job in the same or similar occupational classification. By offering consistency in its determinations, USCIS may reduce individuals’ reluctance to accept new job opportunities or promotions, thereby increasing job flexibility and stability, while their green card applications are pending. USCIS will accept comments related to the draft memorandum through January 4, 2016, and the agency plans to finalize the memorandum for an effective date of March 21, 2016.

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