(While this topic is not strictly EB-5 related, it came up recently and potentially affects an EB-5 client of mine so I thought I would share.)

People who are overseas when they apply for an immigrant visa (i.e. greencard) such as an EB-5 have to go through consular processing when their I-526 petitions are approved. If the people are already in the United States they can go through an Adjustment of Status (a/k/a AOS or I-485) instead of having to go back to their home countries for an interview. But in order to be eligible for AOS, one must be in valid status. For example, if you are in the United States as an F-1 student and you apply for an EB-5 visa, your F-1 status must be valid until your I-526 is approved and you can file for AOS. An F-1 is valid until the academic program that was the basis of the visa is completed. And, if you make a timely filing, you are eligible for Optional Practical Training (a/k/a OPT) for a 12 month period after the completion of your studies. A few years ago, the STEM OPT system was introduced for students who have Science, Technology, Engineering or Math degrees. STEM degree students can apply for a 12 month regular OPT and then if they can find an eligible employer who can sponsor the STEM OPT, apply for a STEM OPT which extends their stay for an additional 17 months. Obviously this program was introduced so that the United States can take advantage of the contributions that STEM degree holders can make by making it easier for them to stay. But unlike the regular OPT that anyone post-degree can apply for without a sponsoring employers as long as the job position is related to your degree, you can only get a STEM OPT if an eligible employer sponsors you.

Recently, I spoke to a foreign national with a STEM degree employed under his regular OPT who approached his employer for a STEM extension. What he nor the employer realized, however, was that the employer must sign up for E-Verify in order to be able to sponsor a STEM OPT. E-Verify is free and voluntary government program that allows employers to verify the work authorization status of their employees, both U.S. and foreign. Unless your company falls under one of the few exceptions, for example, you do business with the federal government, it is a voluntary program. Another exception would be if they intend to hire a STEM OPT employee. For whatever reason, which is none of our business, they opted not to sign up for the program and so the foreign national only has 30 days left on his OPT with no sponsor.

My client is affected as her OPT expires this summer but anticipates getting a STEM extension to cover her stay while her I-526 petition, which is being filed this week, is pending.

Moral of the story: if you are a STEM degree student and expect to get a 17-month STEM extension, make sure that your OPT employers knows what it needs to do in order to sponsor your STEM extension. Don’t assume that they just know.

P.S. How do you know if you qualify for a STEM OPT? Check the number in front of your degree on your I -20 and see if it is on the ICE STEM OPT degree list. (Please note that this list gets updated annually and the list in the link is the most current as of the date of this blog post.)