New F-1 STEM Optional Practical Training Program Regulations

On March 11, 2016, the Department of Homeland Security (DHS) announced a change in its F-1 student regulations regarding the optional practical training program (OPT).  The OPT program allows international students who graduate from 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) for a specified amount of time.  The current list of degrees designated as a STEM field by Immigration and Customs Enforcement is available here. 

The new OPT regulation increases the amount of time international students are allowed to work for their E-Verify employer from 17 months to 24 months and heightens requirements of employers seeking to hire qualified F-1 students.   This extension recognizes the difficulty in securing an H-1B visa under the current lottery distribution system and allows an F-1 OPT holder additional opportunities to apply for other H-1B visa cap seasons during their term of employment.  It further benefits students and employers by providing greater flexibility in hiring and job-searching, as employers are more willing to seriously consider a candidate who has a longer work authorization term. 

Foreign students who qualify for STEM OPT extension will now enjoy a total of 36 months of practical training after graduation, 12 months of an initial work permit with an additional 24 months under the new STEM OPT extension regulation.  The new regulation is effective May 10, 2016.

Key Provisions of New STEM OPT Regulation

• 24 Month Extension: The regulation extends authorized OPT work period from 17 months to 24 months.
• Clarified STEM Designations: The regulation more clearly defines which degrees may serve as the basis of a STEM OPT extension.
• School Accreditation: The regulation requires that students earn their qualifying degree from a U.S. educational institution accredited by the U.S. Department of Education.
• Previous STEM Degrees: A student may base a STEM OPT extension based on the student’s most recent academic degree, or may base the extension on a STEM degree that the student earned earlier in the U.S. Under this rule, a student may be eligible for up to two separate STEM OPT extensions over the course of his or her academic career, upon completing two STEM degrees at different educational levels. 
• Formal Mentoring and Training Plans: Employers must incorporate a formal training program that includes concrete learning objectives with proper oversight.
• Employer Site Visits: DHS may visit employer’s site to monitor compliance with the regulation.
• Safeguards for U.S. Workers: The regulation requires the terms and conditions of a STEM OPT opportunity to be commensurate with those applicable to similarly situated U.S. workers.  Employers must also attest that the student will not replace a full or part-time temporary or permanent U.S. worker. 

What is required of students?

• Eligibility for First Time Applicants: Students must hold a qualifying STEM degree from an accredited U.S. institution and secure employment with an E-verify employer who complies with the new regulation.
• Eligibility for Current F-1 STEM OPT holders: A current F-1 STEM OPT holder is eligible to extend their status for 7 additional months if they hold a STEM degree from an accredited U.S. institution, are employed with an E-verify employer who complies with the new regulation, and files form I-765 to request an additional 7 months of work authorization 150 days prior to their current expiration date.
• Reporting Requirements: Students must confirm biographical, residential, and employment information every 6 months.   Students must report to the DSO with a self-evaluation of his or her progress in practical training. Student and employer are obligated to report changes in employment status and material changes to the student’s formal training plain. 
• Ineligibility:  Students whose 17-month STEM OPT extension expires prior to May 10, 2016 or who have less than 150 days remaining on their 17-month STEM OPT extension EADs on the date that they are able to properly file their STEM OPT extension are ineligible to benefit from the 24-month STEM extension with their most current degree.

What is required of employers?

• Formal Mentoring and Training Plans: A STEM OPT employer must agree to provide a work-based formal training program related to the student’s academic studies, including identifying learning objectives and a plan for achieving those objectives, overseeing the program, supervising the student, and providing performance evaluations every 6 months which must be reported on a newly created government form (I-983) to designated school officials.  Employers may use existing training programs as the basis of evaluating student progress.
• Employer Attestations: Employer must agree not to replace any U.S. workers with the foreign student and to provide wages and benefits comparable to other similarly situated U.S. workers employed at the work site.  A student’s practical training opportunity may not result in the termination, laying off, or furloughing of any full or part-time, temporary or permanent U.S. workers.
• Reporting Requirements: Employer and student are obligated to promptly report any material changes to the student’s formal training plan and changes in the student’s employment status.
• Compliance Requirements: The training conducted pursuant to the plan must be in compliance with all applicable Federal and State requirements relating to employment.   Employer compliance efforts may be monitored by DHS through on-site audit visits, with 48 hours of prior notice, unless a complaint or other evidence of noncompliance to determine employer maintenance of training program records and compliance with the regulatory requirements.

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 be reaching out to our clients with instructions on next steps and will report on any developments including clarification from USCIS.  Please do not hesitate to contact us with any further questions.