In the March 11, 2016 Federal Register, the Department of Homeland Security published its new rule entitled "Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students." A full copy of the rule, effective May 10, 2016, can be found on the Federal Register's website. Not only are there major changes for F-1 students, but there are also significant new requirements for employers of F-1 students on STEM OPT and Designated School Officials (“DSO”s) at colleges and universities F-1 students attend.
International students who come to the U.S. on F-1 visas to study at colleges and universities can participate in optional practical training (“OPT”), providing eligible students with one year of work authorization in the U.S. after completing their degrees, so long as their work is directly related to their fields of study. Under DHS’s 2008 regulations, students who completed a degree in science, technology, engineering or mathematics (“STEM”) were eligible for a 17-month extension to their OPT (referred to as STEM OPT), provided the employment was still related to their field of study and required all employers of F-1 students on STEM OPT to enroll in E-Verify.
In response to a lawsuit filed in 2015 that alleged DHS’s 2008 regulations violated the notice and comment provisions of the Administrative Procedures Act, DHS revised its STEM OPT regulations and published a new proposed rule on October 19, 2015. DHS received over 50,000 comments to its new rule. Due to the ongoing litigation concerning the 2008 regulations, DHS requested the federal district court hearing that case to allow the 2008 regulations to remain in place until May 10, 2016. The federal district court granted DHS’s request and on Friday, March 11, 2016, DHS published its new final rule on STEM OPT in the Federal Register, scheduled to take effect May 10, 2016.
DHS’s new rules include many important changes for students, employers, and DSOs. The regulations also address the transitional period for F-1 students currently on STEM OPT or who have recently applied for their STEM OPT and clarify travel provisions during cap-gap. Several major highlights of the new rules include:
FOR F-1 STUDENTS
- F-1 students who graduate from an accredited U.S. college or university with a STEM degree are now eligible for a 24 month extension to their OPT, provided the student and their employer take certain necessary actions.
- This rule opens up STEM OPT for F-1 students twice in their academic career in the U.S. Previously, a student could only seek one lifetime STEM extension to OPT, regardless of whether the student earned two STEM degrees (example, bachelors in engineering and then a masters in engineering, or a masters and then a Ph.D.). Now students will be eligible for 1 year of regular OPT after each degree level, plus 24 months of STEM OPT for each qualifying STEM degree, with a maximum of two STEM OPT extensions.
- F-1 students can seek this extension based on their most recent degree or a previously earned STEM degree, provided that degree was earned within the past 10 years at a qualifying, accredited U.S. college or university. For example, if an F-1 student earned her bachelor's in engineering and then pursued an MBA, that student can seek a STEM extension to her OPT after completing her MBA, so long as the offered employment relates to the STEM degree.
- The new rule increases the limits on unemployment during the STEM OPT period. During OPT a student is allowed a maximum of 90 days of unemployment and under the previous rule the STEM extension added 30 days of unemployment for a maximum of 120 days of unemployment. Under the new rule, the STEM extension adds 60 days for a total unemployment period of 150 days over the aggregate 3 years of OPT and STEM extension.
- The rules update the degrees that qualify for STEM extension. The updated STEM Designated Degree Program List is available on U.S. Immigration and Customs Enforcement's webpage.
- In light of the required training program with employers, discussed below, self-employment is no longer permitted during STEM OPT. F-1 students must work a minimum of 20 hours per week with their STEM OPT employers. Students can still work for multiple employers but the employment at each job must meet the STEM OPT requirements, including the 20 hours per week minimum and training plans. Volunteering is also not permitted for satisfying the 20 hour per week minimum under STEM OPT.
- In order for a school's DSO to authorize a student for a STEM OPT extension, the student must provide the DSO with a formal training plan on Form I-983, signed by the employer and the student. The DSO can then authorize the period of STEM OPT on the student's Form I-20, which the student will need for filing his or her application for extending employment authorization with USCIS.
FOR EMPLOYERS OF F-1 STUDENTS ON STEM OPT
- E-Verify enrollment is still required for all employers who seek to hire F-1 students on STEM OPT.
- The new rule includes reporting and training requirements that students and their employers must undertake. Most notably, a student must draft and an employer must sign a formal training plan on new Form I-983. The final form I-983 is now available on the Department of Homeland Security's Study in the States website.
- The training plan will describe the training the student employee can expect to receive, how the training goals will be achieved, describe a performance evaluation process, disclose the wage the employee will be paid, and include several required attestations the employer must make, notably:
- The employer has the resources and personnel to provide the F-1 student with the appropriate training;
- The student employee will not replace a full or part-time, temporary or permanent U.S. worker; and,
- The compensation to the student employee is commensurate to that provided to similarly situated U.S. workers, and if the employer does not employ or has not recently employed at least two other U.S. workers performing similar duties, the employer is obligated to obtain information about other employers offering similar employment in the same geographic area.
- To remain in compliance for work authorization, the F-1 student employee is required to submit to his or her school's DSO a self-evaluation of progress towards the training goals 12 months into the employment and at the conclusion of the 24 months of OPT STEM employment, countersigned by the employer.
- The employer is required to report to the school's DSO a student's termination or departure of an OPT student within five business days if the termination or departure occurs prior to the end of the authorized period of OPT. Employers shall consider a student to have departed when the employer knows the student has left the practical training opportunity or has not reported to work for a period of five consecutive business days without the consent of the employer.
- To ensure compliance with all the details contained in the training plan, DHS may conduct site visits to employers upon providing 48 hours notice. If DHS receives any complaints or suspects non-compliance, it may conduct site visits without notice.
- USCIS will begin accepting 24 month STEM OPT employment authorization applications (Form I-765) on May 10, 2016.
- Any F-1 student who has applied for STEM OPT and whose I-765 application is still pending as of May 10, 2016 will receive a Request for Evidence ("RFE") from USCIS providing the student the opportunity to amend his or her 17 month STEM request to the full 24 month STEM period without having to pay a new application fee.
- An F-1 student who receives this RFE who wishes to take advantage of the additional 7 months of STEM OPT must obtain a new I-20, endorsed on or after May 10, 2016, which will require the student to provide his or her DSO with a training plan on Form I-983, signed by the student's employer.
- A student who presently has a valid 17 month extension of STEM OPT has a limited window in which to timely file for a 7 month extension to obtain the benefit of the full 24 months of STEM OPT. F-1 students who fall into this category must provide their DSO with a training program, obtain a new I-20 dated on or after May 10, 2016, must file on or before August 8, 2016 (90 days after this rule goes into effect) and at the time of filing the I-765 students must have at least 150 days left in their current 17 month STEM OPT period.
We expect USCIS will be providing additional guidance over the coming weeks to advise on a number of the changes in the new rule. Please check our website at www.iandoli.com/newsandupdates for the latest changes to the STEM OPT rules and any other immigration-related news