Fragomen, Del Rey, Bernsen & Loewy, LLP
Revised STEM OPT Program Will Take Effect May 10
Visas / Residency / Work Permits
March 9, 2016
A significantly revised and broadened STEM optional practical training (OPT) program will take effect on May 10 under a final regulation slated to be published in the Federal Register on Friday. An advance copy of the rule was made available today.
Under the new rule, more F-1 STEM students will be eligible for an extension of their OPT and those who qualify will be granted a longer period of employment authorization. But their employers will be subject to stringent new requirements, including the obligation to prepare a detailed training plan for each STEM OPT candidate, comply with more extensive reporting requirements and undergo worksite inspections conducted by U.S. Immigration and Customs Enforcement (ICE). These requirements apply only to extensions of OPT for F-1 students with a qualifying U.S. science, technology, engineering or math degree; the standard 12-month OPT program is unchanged.
The new regulation permits the program to continue without interruption following a federal court decision holding that current STEM OPT rules did not meet procedural requirements. The court stayed its decision to invalidate the current program and granted the Department of Homeland Security additional time to promulgate replacement rules. The lawsuit challenging the STEM OPT program is ongoing. The existing STEM OPT regulation will remain in place until May 9.
A summary of the key points of the revised STEM OPT program is below. Fragomen will follow this summary with detailed guidance on the impact of the new rules on employers and F-1 students.
ELIGIBILITY FOR A STEM EXTENSION OF OPT
Under current rules, a 17-month extension of OPT is available to F-1 students who have earned a qualifying U.S. degree in a designated STEM field. The new regulation will broaden the eligibility criteria for a STEM extension of OPT and lengthen the duration of STEM employment authorization, as follows:
- A more extensive list of U.S. STEM and related degrees will qualify F-1 students for an OPT extension. DHS is expected to publish the expanded list of STEM-designated degrees in the coming days. As under prior rules, the F-1 student's degree must be directly related to the STEM OPT job. The student must have completed all degree requirements to be eligible for a STEM extension, with the exception of any thesis or comparable requirement.
- The STEM extension of OPT will be 24 months in duration. Qualifying F-1 students will thus be eligible for a total of 36 months of OPT employment authorization, including the initial 12-month OPT period.
- Students who were granted a 17-month STEM OPT extension under earlier rules can seek a further seven months of work authorization subject to the requirements and obligations of the new rules, as discussed below.
- F-1 students who earn an additional qualifying STEM degree at a higher education level can apply for a second 24 months of OPT, but this period cannot immediately follow the first STEM OPT extension. There must be an intervening degree and a period of 12-month OPT before the foreign national can obtain a second period of STEM OPT. No student can obtain more than two periods of STEM OPT.
- F-1 students with a previously obtained STEM degree can qualify for the OPT extension as long as the prior degree is directly related to the position. For example, an F-1 student whose most recent U.S. degree was an MBA could qualify for a STEM OPT extension on the basis of her U.S. bachelor's degree in chemistry. The earlier degree must have been conferred within 10 years before the application for the OPT extension and have been issued by a U.S. school that is duly accredited and is certified by the Student and Exchange Visitor Program at the time of the application. Under previous rules, an OPT extension was available only to those whose most recent U.S. degree was in a qualifying STEM field.
NEW EMPLOYER OBLIGATIONS
Employers must meet significant new obligations in order to employ an F-1 student during the STEM OPT period.
Training plan. Before an application for a STEM OPT employment authorization document (EAD) can be filed, the employer and the F-1 student must prepare and sign a formal training plan and submit it to the student's designated school official (DSO). DHS is expected to issue a new Form I-983, the Training Plan for STEM OPT Students, once the new regulation is published.
The plan must state the specific goals for the STEM OPT period and how they will be achieved; detail the specific knowledge, skills or techniques the employer will impart to the student; explain how the training is directly related to the student's STEM degree; and describe how the student will be supervised and evaluated. The final rule clarifies that employers can rely on their existing training policies to satisfy the evaluation and supervision requirements, as long as their policies meet the requirements of the rule.
DHS originally sought to require employers to establish a formal mentoring process for F-1 students on STEM OPT, but dispensed with this requirement in the final regulation.
Employer attestations. Employers must certify the following in the training plan:
- The terms and conditions of the STEM OPT employment - including compensation - are commensurate with those provided to similarly situated U.S. workers. Compensation information must be disclosed in the training plan.
- The STEM OPT student will not "replace" a full- or part-time, temporary or permanent U.S. worker. The proposed regulation would have required the employer to attest that no U.S. worker would be terminated, laid off or furloughed a U.S. worker.
- The employer has sufficient resources and personnel to train the student in the position.
- The training is directly related to the STEM degree and the offered position will achieve the objectives of the training plan.
Evaluations. The employer and the F-1 student must complete a performance evaluation after the first 12 months of STEM OPT and at the conclusion of the STEM program. Evaluations must be signed by the student and employer, and the student must submit the evaluation to the DSO within ten days after the conclusion of the review period. DHS originally planned to require evaluations every six months during STEM OPT, but opted for a reduced evaluation requirement in response to feedback from stakeholders.
Employment termination. The employer is required to notify the DSO within five business days if the F-1 student is terminated or departs the STEM OPT job; under prior rules, the employer had 48 hours to make this notification.
Changes in the training plan. Employers and students are obligated to notify the DSO "at the earliest available opportunity" if there are material changes to or deviations from the training plan. Material changes include a decrease in the F-1 student's compensation that is not tied to a reduction in work hours; a significant decrease in work hours; any decrease in work hours below the minimum 20 hours per week (excluding time off pursuant to the employer's leave policy); a change in the employer's EIN due to corporate restructuring; or any change or deviation that renders the employer's attestations invalid or the training plan inaccurate.
E-Verify. As under prior rules, employers must be enrolled and participating in E-Verify to employ an F-1 student in STEM OPT. The new regulation does not change this obligation but commentary to the rule specifies that the employer must participate in E-Verify at the location where the student will work.
The new regulation gives U.S. Immigration and Customs Enforcement (ICE) the authority to conduct on-site reviews to verify whether employers are adhering to their training plans and otherwise complying with STEM OPT program requirements. The agency will give employers 48 hours' notice of a site visit, unless the visit is triggered by a complaint or other evidence of noncompliance.
All F-1 students on STEM OPT will be required to:
- Report to the DSO within 10 days after starting a new STEM OPT job. If there is a job change from the original STEM job, the student must submit the new employer's training plan to the DSO, who must make a new recommendation for STEM OPT.
- Report to the DSO within 10 days of a change in their legal name, residence address, employer's name and address or loss of employment.
- Report to the DSO any material changes to the training plan "at the earliest available opportunity," as described above.
- Report to the DSO every six months to confirm the accuracy of information in their SEVIS record, including their legal name and residence address, employer name and address and the status of their current employment.
As under prior rules, F-1 students on STEM OPT are subject to limits on unemployment, but those limits will increase. The new rule allows STEM OPT students a maximum of 150 days of unemployment during their entire post-completion OPT period - 90 days for the initial 12-month grant and an additional 60 days once granted a STEM extension. Previously, F-1s granted STEM OPT were limited to a maximum of 120 days of unemployment during the post-completion OPT period.
USCIS will begin to accept applications for a STEM extension of work authorization under the new rule on May 10, 2016. Before an application can be submitted, the following steps must be completed:
- STEM OPT employer and the F-1 student must prepare and sign the training plan.
- The student must submit the training plan to the DSO.
- The DSO must review the plan to ensure that it is complete and signed and that it addresses program requirements.
- The DSO must approve the training plan and recommend STEM OPT extension by endorsing the F-1's Form I-20.
- USCIS Form I-765, the application for employment authorization, and supporting documentation must be submitted during validity of F-1's initial OPT EAD and within 60 days of the DSO's recommendation. The training plan need not be submitted with the application, but USCIS has the authority to request for a copy of the plan.
If the current OPT EAD expires while the STEM extension is pending, the F-1 student's employment authorization is automatically extended for up to 180 days while the application is adjudicated, as under current rules.
TRANSITIONAL RULES FOR STEM OPT APPLICATIONS FILED BEFORE MAY 10
Between now and May 9, 2016, USCIS will continue to accept STEM OPT EAD applications under existing rules. A STEM OPT EAD that is granted before May 10 will be valid for 17 months and will be subject to earlier program requirements. However, if the application is pending on or after May 10, USCIS will adjudicate it under the new regulations and will issue a request for a training plan that meets the new requirements. If approved, the EAD will be issued for 24 months.
TRANSITIONAL RULES FOR F-1 STUDENTS ALREADY ON STEM OPT
F-1 students who hold a valid 17-month STEM OPT EAD issued and valid before May 10, 2016 can continue to work through their EAD expiration, unless their EAD is withdrawn or revoked. They and their employers will be subject to earlier program rules.
F-1 students in a period of 17-month STEM OPT can file for a seven-month extension between May 10, 2016 and August 8, 2016 , provided that the student has at least 150 days remaining on their current EAD at the time the application is filed and the requirements of the new regulation - including an approved training plan - are met. If the student's OPT EAD expires while the new application is pending, he or she receives an automatic extension of work authorization for up to 180 days or until the application is adjudicated.
F-1 students who have completed their OPT period and are in the 60-day grace period are not eligible to file for a STEM extension under the new or current rules.
CAP-GAP BENEFITS FOR F-1 STUDENTS AWAITING A CHANGE OF STATUS TO H-1B
The new regulation maintains "cap gap" protections for F-1 students who are awaiting a change of status to H-1B. As under prior rules, an F-1 student who is the beneficiary of an H-1B cap petition and a request to change status to H-1B filed while her OPT EAD is valid receives an automatic extension of status and work authorization from the expiration of the EAD through October 1, the date that the change of status takes effect. A student in valid F-1 status without OPT or with an expired OPT EAD when the cap petition is filed receives an extension of stay only.
In commentary to the final regulation, the agency reaffirms that cap-gap protections are available only when the F-1 student is the beneficiary of an H-1B petition that is subject to the annual cap; a petition for cap-exempt H-1B employment will not confer these interim benefits. The agency also clarifies that F-1 students in the cap gap may change employers.
WHAT THE NEW REGULATION MEANS FOR EMPLOYERS AND F-1 STUDENTS
The highly anticipated rule broadens employment opportunities for F-1 STEM students, but the significant new obligations on students, employers and schools will require prompt planning. Employers and F-1 students who will pursue STEM OPT employment must act quickly so they can meet additional requirements in time to file applications when the new rule takes effect. Timely filing is particularly critical for those with an OPT EAD that expires soon, and for those who want to seek a seven-month extension of their current STEM OPT.
Reprinted with permission of Fragomen, Del Rey, Bernsen & Loewy, LLP.
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