DHS Publishes Final Stem OPT Rule

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On Thursday, March 10, the Department of Homeland Security published the long-anticipated final STEM Optional Practical Training rule in the Federal Register.

United States Immigration

On Thursday, March 10, the Department of Homeland Security ("DHS") published the long-anticipated final STEM Optional Practical Training ("OPT") rule in the Federal Register. The final rule will take effect on May 10, 2016. The rule provides significant benefits to STEM OPT beneficiaries, including in particular a 24-month extension of work authorization. However, the rule also imposes additional requirements on U.S. employers.

BACKGROUND

The STEM OPT program allows recent university graduates who majored in a STEM field (Science, Technology, Engineering, or Mathematics) to receive an additional 17 months of work authorization beyond the initial 12 months of OPT that they receive upon completion of their academic program. Due to the increased demand for H-1B visas the past few years, the STEM OPT program significantly benefits employers wishing to hire and retain talented foreign student graduates who do not secure an H-1B through the H-1B cap lottery as it allows for a longer period of OPT employment and multiple chances at the lottery. A recent federal district court ruling in Washington Alliance of Technology Workers v. DHS vacated the STEM OPT program due to procedural issues regarding its creation. However, the Judge stayed her ruling keeping the STEM OPT program in place until May 10, 2016.

FINAL STEM OPT RULE

In addition to re-authorizing the STEM OPT program and the Cap-Gap Extension provisions, the proposed rule, titled "Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students," includes additional benefits to eligible F-1 students.

New Benefits

Extension of Work Authorization

The final rule increases the current 17-month STEM OPT extension available to F-1 students to 24 months. As with the previous STEM rule, the F-1 student will only be authorized to work for employers who are enrolled in USCIS's E-Verify employment eligibility verification program.

STEM OPT Following Completion of Second Degree

The final rule would allow F-1 students who have already used a first grant of STEM OPT work authorization from a prior degree to enroll in another STEM-eligible academic program and apply for an additional 24-month STEM OPT extension.

Previously Obtained STEM Degrees

Under the final rule, F-1 students who graduate from a non-STEM degree program and only receive a 12-month grant of OPT work authorization would be eligible to use a previously granted STEM degree as a basis to apply for a 24-month STEM extension. To take advantage of this provision, the employment opportunity would need to directly relate to the previously obtained STEM degree.

Increase in Number of Days an F-1 Student May Remain Unemployed

The current rule allowing F-1 students to accrue 90 days of unemployment during an initial 12-month grant of OPT remains unchanged. However, for F-1 students granted STEM OPT, the final rule would increases the number of unemployment days from 30 to 60 during the 24-month period.

New Requirements and Restrictions

The new rule is intended to increase regulatory compliance over STEM OPT extensions, including:

Employer Site Visits

The new rule provides DHS with discretion to conduct employer site visits to ensure F-1 employers meet the requirements of the OPT program. Generally, DHS will be required to provide notice 48 hours prior to the inspection, unless the visit is conducted in response to a complaint or evidence of noncompliance.

Training Plan

Employers will be required to complete formal Training Plans for F-1 students applying for STEM OPT benefits. These F-1 students would be required to provide evidence of a training plan to their Designated School Officials ("DSOs"), which would then permit DSOs to recommend STEM OPT for the student. The STEM OPT employer must review the plan and attest to the following:

The terms and conditions of the STEM OPT employment - including compensation - are commensurate with those provided to similarly situated U.S. workers.
The STEM OPT student will not "replace" a full- or part-time, temporary or permanent U.S. worker. The proposed regulation will 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

Employers will be required to submit evaluations of the students work, after the first 12 months of STEM OPT and at the conclusion of the STEM program.

Termination of Employment

Employers are required to notify the DSO within five business days if the F-1 student is terminated or departs the STEM OPT job.

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