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Department of Homeland Security Vol. 81 Friday, No. 48 March 11, 2016 Part II Department of Homeland Security 8 CFR Parts 214 and 274a Improving and Expanding Training Opportunities for F–1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F–1 Students; Final Rule VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00001 16030901. Fmt 4717 Sfmt 4717(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13040 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations DEPARTMENT OF HOMELAND B. Summary of the Major Provisions of the II. Executive Summary SECURITY Final Rule C. Costs and Benefits A. Purpose of the Regulatory Action 8 CFR Parts 214 and 274a III. Background This final rule affects certain F–1 A. Statutory and Regulatory Authority and nonimmigrant students who seek to [DHS Docket No. ICEB–2015–0002] History obtain an extension of optional practical B. The 2015 NPRM RIN 1653–AA72 C. Basis and Purpose of Regulatory Action training (OPT) based on study at a U.S. IV. Discussion of Comments and Final Rule institution of higher education in a Improving and Expanding Training A. Including a STEM OPT Extension science, technology, engineering or Opportunities for F–1 Nonimmigrant Within the OPT Program mathematics (STEM) field, as well as Students With STEM Degrees and Cap- B. Enforcement, Monitoring, and Oversight certain F–1 nonimmigrant students who Gap Relief for All Eligible F–1 Students C. Qualifying F–1 Nonimmigrants seek so-called Cap-Gap relief. The F–1 D. Qualifying Employers nonimmigrant classification is available AGENCY: Department of Homeland E. STEM OPT Extension Validity Period to individuals seeking temporary Security. F. Training Plan for F–1 Nonimmigrants on admission to the United States as ACTION: Final rule. a STEM OPT Extension G. Application Procedures for STEM OPT students at an established college, SUMMARY: The Department of Homeland Extension university, seminary, conservatory, Security (DHS) is amending its F–1 H. Travel and Employment Authorization academic high school, elementary nonimmigrant student visa regulations Documentation of Certain F–1 school, or other academic institution or on optional practical training (OPT) for Nonimmigrants Changing Status in the in an accredited language training United States or on a STEM OPT 1 certain students with degrees in science, program. To obtain F–1 nonimmigrant Extension classification, the student must be technology, engineering, or mathematics I. Transition Procedures (STEM) from U.S. institutions of higher enrolled in a full course of study at a J. Comments on the Initial Regulatory qualifying institution and have education. Specifically, the final rule Impact Analysis allows such F–1 STEM students who K. Other Comments sufficient funds for self-support during have elected to pursue 12 months of V. Statutory and Regulatory Requirements the entire proposed course of study. OPT in the United States to extend the A. Executive Orders 12866 and 13563: Such course of study must occur at a OPT period by 24 months (STEM OPT Regulatory Planning and Review school authorized by the U.S. B. Regulatory Flexibility Act government to accept international extension). This 24-month extension C. Small Business Regulatory Enforcement effectively replaces the 17-month STEM students. Fairness Act of 1996 OPT is a form of temporary OPT extension previously available to D. Unfunded Mandates Reform Act employment available to F–1 students certain STEM students. The rule also E. Congressional Review Act (except those in English language improves and increases oversight over F. Collection of Information training programs) that directly relates STEM OPT extensions by, among other G. Federalism to a student’s major area of study in the things, requiring the implementation of H. Civil Justice Reform United States. A student can apply to formal training plans by employers, I. Energy Effects J. Environment engage in OPT during his or her adding wage and other protections for K. Indian Tribal Governments academic program (‘‘pre-completion STEM OPT students and U.S. workers, L. Taking of Private Property OPT’’) or after completing the academic and allowing extensions only to M. Protection of Children program (‘‘post-completion OPT’’). A students with degrees from accredited N. Technical Standards student can apply for 12 months of OPT schools. As with the prior 17-month List of Subjects at each education level (e.g., one 12- STEM OPT extension, the rule The Amendments month OPT period at the bachelor’s authorizes STEM OPT extensions only I. Abbreviations level and another 12-month period at for students employed by employers the master’s level). While school is in who participate in E-Verify. The rule CBP U.S. Customs and Border Protection session, the student may work up to 20 also includes the ‘‘Cap-Gap’’ relief first CFR Code of Federal Regulations hours per week pursuant to OPT. introduced in a 2008 DHS regulation for CIP Classification of Instructional Program DHS Department of Homeland Security This final rule provides for an any F–1 student with a timely filed DSO Designated School Official extension of the OPT period for certain H–1B petition and request for change of EAD Employment Authorization Document F–1 students who have earned certain status. FOIA Freedom of Information Act STEM degrees and participate in DATES: This rule is effective May 10, FR Federal Register practical training opportunities with 2016, except the addition of 8 CFR ICE U.S. Immigration and Customs employers that meet certain Enforcement 214.16, which is effective from May 10, requirements. The Department of 2016, through May 10, 2019. ID Identification IFR Interim Final Rule Homeland Security (DHS) first FOR FURTHER INFORMATION CONTACT: INA Immigration and Nationality Act introduced an extension of OPT for Katherine Westerlund, Policy Chief NCES National Center for Education STEM graduates in a 2008 interim final (Acting), Student and Exchange Visitor Statistics rule (2008 IFR). See 73 FR 18944 (Apr. Program, U.S. Immigration and Customs NPRM Notice of Proposed Rulemaking 8, 2008). Under the 2008 IFR, an F–1 Enforcement, 500 12th Street SW., OPT Optional Practical Training student with a STEM degree from a U.S. Washington, DC 20536; telephone (703) RIA Regulatory Impact Analysis institution of higher education could 603–3400; email [email protected]. SEVP Student and Exchange Visitor apply for an additional 17 months of Program SUPPLEMENTARY INFORMATION: SEVIS Student and Exchange Visitor 1 For purposes of 8 CFR 214.2(f), a ‘‘college or Table of Contents Information System STEM Science, Technology, Engineering, or university’’ is an institution of higher learning that awards recognized bachelor’s, master’s, doctoral or I. Abbreviations Mathematics professional degrees. See 8 CFR 214.3(a)(2)(A). A II. Executive Summary U.S.C. United States Code career or technical institution may therefore be A. Summary of Purpose of the Regulatory USCIS U.S. Citizenship and Immigration categorized as a ‘‘college or university’’ if it awards Action Services such degrees. VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00002 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13041 OPT (17-Month STEM OPT extension), extension on the student’s most recent the employer. Fourth, both the student provided that the employer from which academic degree, or may (subject to a and the employer are obligated to report the student sought employment was number of requirements described in to the DSO material changes to, or enrolled in and remained in good more detail below) base the extension material deviations from, the student’s standing in the E-Verify electronic on a STEM degree that the student formal training plan. employment eligibility verification earned earlier in his or her academic Finally, this rule includes a number of program (E-Verify), as determined by career in the United States. Under this specific obligations for STEM OPT U.S. Citizenship and Immigration rule, a student may be eligible for up to employers. These obligations are Services (USCIS). As discussed in two, separate STEM OPT extensions intended to ensure the integrity of the further detail below, on August 12, over the course of his or her academic program and provide safeguards for U.S. 2015, the U.S. District Court for the career, upon completing two qualifying workers in STEM fields. Among other District of Columbia ordered the vacatur STEM degrees at different educational things, the employer must be enrolled in of the 2008 IFR on procedural grounds levels. and remain in good standing with E- and remanded the issue to DHS. The This rule includes a number of Verify; assist with the aforementioned court stayed the vacatur until February measures intended to better ensure the reporting and training plan 12, 2016 to give DHS the opportunity to educational benefit, integrity, and requirements; and attest that (1) it has issue a new rule related to STEM OPT security of the STEM OPT extension. sufficient resources and trained extensions through notice-and-comment For instance, the rule requires each personnel available to provide rulemaking. STEM OPT student to prepare and appropriate training in connection with On October 19, 2015, DHS published execute with their prospective employer the specified opportunity; (2) the a notice of proposed rulemaking a formal training plan that identifies student on a STEM OPT extension will (NPRM) in the Federal Register to learning objectives and a plan for not replace a full- or part-time, reinstate the STEM OPT extension, with achieving those objectives. The STEM temporary or permanent U.S.
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