The Department of Homeland Security has proposed a new regulation on Optional Practical Training (OPT) that expands the STEM extension and imposes new obligations on employers. The proposed regulation will be published in the Federal Register Oct. 19, after which DHS will accept comments from stakeholders for a period of 30 days.

The proposed 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,” comes in response to the Aug. 13 court decision holding that the rule implemented by DHS in 2008 was procedurally deficient, and affording the agency a six-month period in which to properly promulgate a new rule. The proposal focuses on the extension of OPT available to students in science, technology, engineering and math (STEM) fields and does not make changes to the 12-month OPT program.

OPT Eligibility

The proposed rule would reinstate the STEM OPT extension and make the following key changes:

  • Increase the STEM OPT extension from 17 months to 24 months, for a total of up to 36 months.
  • Allow F-1 students who subsequently enroll in a new academic program and earn a qualifying advanced STEM degree to apply for one additional 24-month OPT extension.
  • Clarify which fields of study and educational institutions qualify for the STEM OPT extension.
  • Permit certain students to qualify for the extension based on a prior eligible STEM degree obtained in the U.S., if the employment is directly related to that degree.

New Employer Obligations

DHS’s proposal would also impose new obligations on employers. It would require students and their employers to prepare a formalized “Mentoring and Training Plan” that the student would submit to the designated school official (DSO) before the official could recommend a STEM OPT extension in the Student and Exchange Visitor Information System (SEVIS). The proposed rule does not mandate that the plan be submitted to the government, but grants DHS the authority to require its submission. As part of the Mentoring and Training Plan, employers would sign a sworn attestation certifying that:

  • The employer has sufficient resources and personnel available and is prepared to provide appropriate mentoring and training in connection with the specified opportunity.
  • The employer will not terminate, lay off, or furlough any full- or part-time, temporary or permanent U.S. worker as a result of the practical training opportunity.
  • The student’s opportunity assists the student in attaining his or her training goals.

Employers would also be required to attest that the terms and conditions of the STEM practical training opportunity are commensurate with those provided to similarly situated U.S. workers, and to provide DHS with compensation information. Students would also report their compensation in the Mentoring and Training Plan and report any adjustments to the government.

Enforcement and Oversight

The proposal would increase oversight of STEM OPT by clarifying accreditation requirements for educational institutions and granting Immigration and Customs Enforcement discretion to conduct site visits to ensure employer compliance. Employers would be required to report to the designated school official within 48 hours when an individual on STEM OPT ceases employment prior to the end of the authorized employment period, and students would be required to submit evaluations every six months to the designated school official and confirm the validity of the information provided in SEVIS.

Grace Period for Students

Currently, F-1 students may be unemployed for up to 90 days during OPT after graduation, and an additional 30 days if the student receives the 17-month STEM OPT extension. The proposed rule would retain the 90-day maximum period during the initial period, and students who obtain 24-month STEM OPT extensions would be allowed an additional 60 days. Students would have 60 days from the date of the designated school official’s recommendation for STEM OPT in which to apply for an Employment Authorization Document from U.S. Citizenship and Immigration Services.

E-Verify and H-1B Cap Gap

The proposal would preserve other provisions of the previous rule, including E-Verify requirements for STEM OPT employers, and would keep in place “cap-gap” protection allowing DHS to extend F-1 status for students whose H-1B status will become effective Oct. 1 of the following fiscal year.

Pending Applications

Applications for the STEM OPT extension that are currently pending or are submitted before the effective date of any final rule will be evaluated under the regulations existing at the time of application. However, DHS proposes that when a final rule takes effect, certain students already working under the STEM extension would be allowed to request the additional time that would be allowed under the new rule. These students and their employers would then be subject to the new obligations imposed by the proposed rule.

BAL Analysis: Employers are reminded that DHS has issued the regulation as a proposed rule and that the provisions will not take effect until published as a final regulation. DHS acknowledges in the regulation that the STEM OPT program may be disrupted if the regulation is not finalized by Feb. 12, 2016, the date imposed by the court. BAL will be working with clients and business immigration trade associations to analyze the regulation and prepare comments for submission during the 30-day period ending Nov. 18. If you are interested in contributing to that process, please reach out to the BAL professional with whom you normally work.

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