DHS Publishes New Regulations for STEM OPT Program
The U.S. Department of Homeland Security (DHS) has published new regulations significantly modifying the STEM Optional Practical Training (OPT) program for F-1 students with a qualifying U.S. science, technology, engineering or math (STEM) degree. Overall, the new regulations will allow more F-1 students to qualify for an extension of their OPT period based on an eligible STEM degree while also increasing the maximum period of STEM OPT time available to F-1 students.
The new regulations also impose stringent compliance obligations on employers, including the obligation to submit detailed training plans for each F-1 student seeking a STEM OPT extension, periodic reporting requirements, and worksite visits conducted by DHS officers. These requirements apply only to STEM OPT extensions for F-1 students with a qualifying STEM degree; the standard 12-month OPT program is unchanged. The new STEM OPT regulations will take effect on May 10, 2016. In the interim, current rules will remain in effect.
Overview of New STEM OPT Extension Regulations:
To qualify for a STEM OPT extension, the F-1 student must possess a bachelor, master, or doctorate level degree in a designated STEM field from an accredited United States educational institution; the F-1 student seeking a STEM OPT extension must already be in an initial period of valid OPT; the practical training opportunity must be directly related to the STEM degree; and the employer must be enrolled in E-Verify and in good standing.
The new regulations will allow F-1 students with qualifying STEM degrees to request an additional 24 months of OPT, in addition to the initial 12-month OPT period. F-1 students will be limited to two lifetime STEM OPT extensions and the second STEM OPT extension must be for a higher level degree. Furthermore, there must be an intervening degree and 12-month OPT period before the F-1 student can secure a second STEM OPT extension. If the F-1 student has completed a STEM OPT extension under the prior 17-month rule, the F-1 student will only be eligible for one additional 24-month STEM OPT extension.
Scenario 1: An F-1 student with a bachelor’s degree in computer science and a master’s degree in computer science cannot obtain consecutive 24-month STEM OPT extensions.
Scenario 2: An F-1 student has a bachelor’s degree in computer science. The F-1 student may be eligible for an initial 12-month OPT period and an additional 24-month STEM OPT extension. After the 24-month STEM OPT period, the F-1 student enrolls in a master’s level computer science program and attains a master’s degree in computer science. The F-1 student may be eligible for another initial 12-month OPT period and another 24-month STEM OPT extension. At the conclusion of the second 24-month STEM OPT extension, the F-1 student has exhausted his/her lifetime eligibility for STEM OPT extensions.
Under the new regulations, an F-1 student may utilize a prior STEM degree to qualify for a STEM OPT extension, even if the F-1 student’s current OPT period is based on a second, non-STEM degree. Under these circumstances, the prior STEM degree must have been conferred to the F-1 student within a prior ten-year period.
Example: An F-1 student holds a bachelor’s degree in computer science from an accredited United States educational institution and a master’s degree in marketing. The F-1 student is currently working pursuant to the 12-month OPT/EAD period issued following the master’s degree. The F-1 student may be eligible for an additional 24 months of STEM OPT based on the bachelor’s degree in computer science (a STEM degree), even though the F-1 student’s current OPT period is based on the master’s degree in marketing (a non-STEM degree).
Caveat: Under the prior rules, the F-1 student would not have been permitted to utilize the bachelor’s degree in computer science as a basis for a STEM OPT extension.
STEM OPT Employer Obligations:
In order for an F-1 student to receive a Form I-20 endorsed for a STEM OPT extension, the F-1 student and STEM OPT employer must execute and submit a Form I-983 Training Plan for STEM OPT Students to the Designated School Official (DSO) at the F-1 student’s university or college. The Form I-983 requires that the F-1 student and employer submit a training plan detailing the STEM practical training opportunity and explaining how it is related to the F-1 student’s STEM degree.
The Form I-983 must list the goals of the practical training opportunity and explain how these goals will be achieved. The Form I-983 must identify the specific knowledge, skills or techniques that will be imparted to the F-1 student, detail the employer’s methods of supervision, and describe the evaluation process for assessing the F-1 student’s performance. All STEM practical training opportunities will require an initial evaluation within 12 months of the start date listed on the F-1 student’s EAD card and a concluding evaluation.
The Form I-983 must also provide the terms and conditions of the STEM practical training opportunity during the 24-month STEM OPT extension. Specifically, it must disclose the F-1 student’s duties, hours and compensation, and attest that the F-1 student’s terms and conditions of employment are commensurate with those offered to the employer’s similarly situated U.S. workers in the area of employment. ‘‘Similarly situated U.S. workers’’ include U.S. workers performing similar duties, subject to similar supervision, and with similar educational backgrounds, industry expertise, employment experience, levels of responsibility and skill sets as the F-1 student. The Form I-983 requires that the employer attest that: (1) it has sufficient resources, personnel, and is prepared to provide the training at the work location(s) specified on the Form I-983; (2) the opportunity is related to the F-1 student’s STEM degree and will assist the F-1 student in reaching his/her training goals; and (3) the F-1 student will not replace a full- or part-time, temporary or permanent U.S. worker.
In the event of a “material change” in the STEM practical training program, the F-1 student and the employer must execute and submit a revised Form I-983 “at the earliest available opportunity.” The new regulations list material changes to include a change of Employer Identification Number resulting from a corporate restructuring, any reduction in compensation not tied to a reduction in hours worked, any significant decrease in the F-1 student’s hours per week, any decrease in hours worked below the minimum of 20 hours per week, and deviations regarding the nature, purpose, oversight, or assessment of the student’s STEM practical training opportunity.
Under the new regulations, the employer is obligated to report the F-1 student’s departure or termination to the DSO within five business days. The employer’s obligation to report the F-1 student’s departure or termination to the DSO is triggered once the F-1 student has given notice or by the F-1 student’s failure to report to work for five consecutive business days without the employer’s consent.
F-1 Student Obligations:
In addition to submitting a Form I-983 that details the training plan and explains how it relates to the F-1 student’s STEM degree, the new regulations impose several new reporting requirements. If an F-1 student begins employment with a new employer during the 24-month STEM OPT period, he/she must submit a new Form I-983 to the school DSO within ten days. During the STEM OPT period, the F-1 student is also required to report a change of legal name, residential or mailing address, employer name, employer address, and/or interruption or loss of employment to the DSO within ten days of the change.
The F-1 student is permitted up to 90 days of unemployment during the initial 12-month OPT period, and F-1 students eligible for a STEM OPT extension are permitted an additional 60 days of unemployment during the 24-month STEM OPT extension period (for a total of 150 days of unemployment). The F-1 student may not engage in less than 20 hours of practical training per week. Every six months, the F-1 student is required to complete and submit a “validation report” confirming that there has not been a change of legal name, residential or mailing address, employer name, employer address, and/or interruption or loss of employment during the STEM OPT period. The validation report is due to the F-1 student’s DSO within 10 business days of each reporting date.
Prior to completion of the STEM training opportunity, the F-1 student must complete a self-evaluation assessing his/her progress toward meeting the training goals described on the Form I-983. All STEM practical training opportunities will require an initial evaluation within twelve months of the start date listed on the F-1 student’s EAD card and a concluding evaluation. The evaluation must be signed by the F-1 student and the employer, and delivered to the DSO within ten days of the reporting period or the end of the STEM practical training program.
Enforcement Measures:
The new regulations authorize DHS to conduct on-site visits at the premises of any STEM OPT employer in order to ensure compliance with the representations stated on the Form I-983. DHS will give employers notice of an on-site visit 48 hours in advance, unless the visit has been triggered by a complaint or other evidence of noncompliance with the STEM OPT program.
STEM OPT Application Process:
Beginning May 10, 2016, there will be a number of changes in the process through which an F-1 student with a qualifying STEM degree applies for a STEM OPT extension. An F-1 student seeking a STEM OPT extension must submit a Form I-983 to the DSO at the F-1 student’s university or college. The Form I-983 requires that the F-1 student and the employer submit a training plan detailing the STEM practical training opportunity and explaining how it is related to the F-1 student’s STEM degree (see the STEM OPT Employer Obligations above).
The Form I-983 must be executed by the F-1 student and the employer and then submitted to the DSO. If the DSO is satisfied that the Form I-983 complies with the requirements of the STEM OPT program, the DSO will approve the training plan and recommend the F-1 student for a STEM OPT extension by issuing a Form I-20 endorsed for the STEM OPT period. The F-1 student then submits a Form I-765 Application for Employment Authorization Document and supporting documentation to U.S. Citizenship and Immigration Services (USCIS) within 60 days from when the DSO has endorsed the Form I-20.
The Form I-765 application may be submitted to USCIS within 90 days of the expiration of the F-1 student’s current EAD card and must be submitted during the validity of the F-1 student’s initial OPT EAD period. The Form I-983 and/or training plan need not be submitted with Form I-765 application, however, it is within the discretion of USCIS to request these items. If the F-1 student’s initial OPT EAD period expires while the Form I-765 application for a STEM OPT extension is pending, the F-1 student’s employment authorization is automatically extended up to 180 days while the timely filed Form I-765 application remains pending.
Transitional Rules for STEM OPT Extension Applications Filed Before May 10, 2016:
USCIS will continue to accept Form I-765 applications requesting a STEM OPT extension under the existing rules through May 9, 2016. A Form I-765 application approved before May 10, 2016 will be valid for 17 months and subject to existing STEM OPT program requirements. If the Form I-765 application has not been approved prior to May 10, 2016, USCIS will adjudicate it under the new regulations and issue a Request for Evidence for a training plan that meets the new requirements. Upon approval, the F-1 student’s new EAD card will be issued for 24 months.
Transitional Rules for F-1 Student Currently on a STEM OPT Extension:
F-1 students with a STEM EAD card issued before May 10, 2016 and valid for 17 months may continue to work through the EAD expiration date. F-1 students with a 17-month STEM EAD card may file for a seven-month STEM OPT extension between May 10, 2016 and August 8, 2016, provided the F-1 student has at least 150 days remaining on his/her current STEM EAD card at the time of filing and all new STEM OPT extension requirements are satisfied.
Conclusion:
DHS is expected to provide future guidance advising how these new STEM OPT obligations will be monitored and observed by employers, F-1 students and DSOs. For now, employers and F-1 students planning to proceed with a STEM OPT extension should act promptly to ensure satisfaction of the new STEM OPT requirements for applications to be filed starting May 10, 2016 or seeking a seven-month extension of the current STEM OPT period. Devendorf Law will monitor these developments and provide updates as they become available.