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Proposed Rule to Change STEM OPT

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Proposed Rule to Change STEM OPT

November 3, 2015

Proposed Rule to Change STEM OPT Would Extend Time and Create Additional Obligations for Employers

On October 19, 2015, the Department of Homeland Security (DHS) announced a proposed rule which would amend its F-1 nonimmigrant student regulations on the optional practical training program (OPT).  The OPT program allows international students at U.S. colleges to work for a U.S. employer in a job directly related to their degrees in science, technology, engineering or mathematics (STEM) fields.

The rule is not yet final, so certain provisions are likely to change.  The public may submit comments to the government until November 18, 2015.

Key Provisions of the Proposed Rule:

24-month extension:  The proposed rule increases the STEM OPT extension period from 17 to 24 months after the student completes the initial 12-month OPT period.

STEM eligible fields defined:  The proposal more clearly defines what fields of study qualify as the basis for a STEM OPT extension.  It also requires DHS to notify the public in the Federal Register when it updates the list of eligible STEM fields. 

Formal mentoring and training plans:  Employers are required to implement formal mentoring and training programs for STEM OPT employees. The plan must be submitted to the student’s Designated School Official (DSO) before the DSO can recommend a STEM OPT extension.  The plan must specify training goals, and the student must submit evaluations of his/her progress to the DSO every 6 months.

Previous STEM degrees:  An F-1 student may use a previously earned STEM degree to apply for a STEM OPT extension as long as employment is directly related to this previous STEM field, and both the previous and most recent recent degree are received from a U.S. accredited educational institution.

Employer Attestations:  Employers must certify that the terms and conditions of a STEM practical training opportunity (including duties, hours, and compensation) are commensurate with those applicable to similarly situated U.S. workers.  Employers must also attest no U.S. worker will be terminated, laid off, or furloughed as a result of a STEM OPT opportunity.

School Accreditation:  The program is limited to students with degrees from U.S. accredited educational institutions.

Employer Site Visits:  U.S. Immigration and Customs Enforcement (ICE) may conduct discretionary on-site reviews at worksites to ensure program compliance and to verify that employers possess the ability and resources to implement the individualized mentoring and training plans.

Compliance Requirements:  The proposed rule allows for an additional 60 days of unemployment for students who obtain a 24-month STEM OPT extension (in addition to the 90 days allowed during the initial 12-month OPT period).

Current Provisions Continue:  STEM OPT employer must still enroll in the USCIS E-Verify Program.  Students must report name/address changes or employer name/address changes to their DSO.  Employers must report, within 48 hours, if the student’s employment terminates before the end of the OPT period.  “Cap-Gap” provisions remain in effect, extending F–1 student’s duration of status and any current employment authorization until October 1, if the student is the beneficiary of a timely filed H–1B petition and requests a change of status.

We will report on the Final Rule once it is published. 

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