STEM OPT extension will increase to 24 months, but imposes new obligations on employers

On March 11, the U.S. Department of Homeland Security published a new rule reauthorizing Optional Practical Training for F-1 nonimmigrant students with qualifying degrees in science, technology, engineering or mathematics (STEM) from accredited U.S. colleges or universities.

STEM OPT extension increased from 17 to 24 months

The new rule goes into effect on May 10, and effectively replaces the 17-month STEM OPT extension previously available to qualifying students under the 2008 interim rule. Most importantly, the new rule increases the OPT extension period for qualifying students with STEM degrees from 17 months to 24 months. A qualifying student with a STEM degree who has been granted 12 months of post-completion OPT under the general OPT program may apply for a 24-month extension.

Employer requirements

Although the rule provides a much needed 24 month extension of the STEM OPT program, it also imposes new responsibilities and reporting requirements on employers intended to increase program oversight and provide safeguards for U.S. workers in STEM fields. As with the prior program, the new rule requires that all STEM OPT employers be enrolled in and remain in good standing with the E-Verify electronic employment eligibility verification program. Employers must also do the following:

• Prepare and implement a formal training program that identifies learning objectives, and develop a plan for achieving those objectives and providing proper oversight of STEM OPT qualifying students, which must be submitted to the relevant Designated School Official before a STEM OPT extension can be recommended.

• Report any material changes to, or material deviations from, the student's formal training plan to the relevant DSO. A material change or deviation may include, but is not limited to, (1) a change in the Employer’s Identification Number resulting from a corporate restructuring; (2) a reduction in a student’s compensation that is not tied to a reduction in hours worked; (3) a significant decrease in hours per week that a student engages in a STEM training opportunity; or (4) a change in the employer’s commitments or student’s learning objectives as documented in the training program.

• Report to the relevant DSO, within five business days, when a STEM OPT student terminates or otherwise leaves employment before the end of the authorized period of OPT.

• Review the student’s annual self-evaluation on his or her progress and attest to its accuracy. The new rule requires that the STEM OPT student complete an annual self-evaluation and report to the DSO on the progress of his or her practical training. The employer must sign the self-evaluation before the evaluation is submitted to the DSO.

• Work with the student to complete the STEM OPT application (Form I-983) and designate an Official with Signatory Authority to certify that information in the document is true and correct. Specifically, STEM OPT employers are responsible for providing specific information about the company and the agreed-upon practical training schedule and compensation, as well as the formal training plan.

To guard against adverse effects on U.S. workers, the new rule also requires that the terms and conditions of STEM OPT student training opportunities (including duties, hours, and compensation) be equal to those available to U.S. workers in similar positions in the same geographical area of employment. Additionally, the employer must attest that (1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the STEM OPT student will not replace a full-time, part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives.

Site Visit Notification

To ensure compliance with program requirements, the new rule also provides for DHS site visits to employer locations where STEM OPT students are employed. The DHS will generally provide 48 hours’ notice. However, the DHS may conduct an unannounced site visit if it receives a complaint or has other evidence of noncompliance with STEM OPT regulations.

Background

The new STEM OPT rule results from a lawsuit filed by American technology workers in March 2014, challenging the validity of a 2008 interim final rule issued by the DHS that extended Optional Practical Training for an additional 17 months for qualifying students with STEM degrees. The plaintiffs contended that the DHS promulgated the interim rule without proper notice or an opportunity for public comment. In August 2015, a federal court in the District of Columbia struck down the 17-month OPT extension program and ordered that the 2008 interim rule be vacated on procedural grounds. However, the court stayed the vacatur until February 12, 2016, to allow the DHS sufficient time to release a new rule reauthorizing the STEM OPT extension program through notice-and-comment rulemaking. On October 19, 2015, DHS published a notice of proposed rulemaking to reinstate the STEM OPT extension program. The proposed rule was open for public comment from October 19, 2015, through November 18, 2015, and the final rule was issued on March 11, 2016.

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