Department of Homeland Security issues regulations extending STEM OPT period and adding new requirements

The Department of Homeland Security (DHS) recently issued a rule extending STEM Optional Practical Training (OPT) from 17 to 24 months and adding a number of new requirements for students and employers. The rule takes effect on May 10, 2016.

Who is eligible for STEM OPT?  

Under the general OPT program, all international students who graduate from colleges and universities in the United States are eligible to obtain up to 12 months of work authorization for employment and training in the United States directly related to their fields of study. Students with degrees in designated science, technology, engineering and mathematics (STEM) fields who work for employers that use E-Verify can apply for an Employment Authorization Document (EAD) valid for an additional period of time. Effective May 10, 2016, the additional period of time for STEM OPT will increase from 17 to 24 months.

How will the transition impact students currently on STEM OPT?

Students who hold STEM OPT when the new rule takes effect on May 10, 2016 must have at least 150 days remaining on their STEM OPT to extend from 17 to 24 months. Accordingly, students whose STEM OPT expires before October 7, 2016 will not be able to extend their STEM OPT from 17 to 24 months.

Students currently holding STEM OPT who are eligible for the additional seven months must submit their applications to United States Citizenship and Immigration Services (USCIS) between May 10, 2016 and August 8, 2016.

How will the transition impact students who submitted a STEM OPT application before May 10, 2016?

Students who have requested a STEM OPT extension before the effective date of the new rule may qualify for 24 months of STEM OPT. For pending extensions that are adjudicated on or after May 10, 2016, USCIS will issue Requests for Evidence that allow students to amend their applications to request 24 months of STEM OPT and provide documentation demonstrating that they are eligible for 24 months of STEM OPT under the new rule.

What new requirements does the rule impose on employers?

The new rule imposes the following key requirements on employers:

• Before a student can obtain a STEM OPT extension, the student must complete and the employer must sign Form I-983, Training Plan for STEM OPT Students. The student submits Form I-983 to the Designated School Official (DSO). The school must make Form I-983 available to Immigration and Customs Enforcement (ICE) and the student may be required to submit the form to USCIS or ICE. 
• The training plan must identify goals, including the specific knowledge, skills or techniques that the student will learn, explain how those goals will be achieved through the opportunity with the employer, describe the performance evaluation process and methods of supervision for the position, and explain how the opportunity relates to the student’s STEM degree.
• On Form I-983, employers must attest that they have sufficient resources and personnel available and are prepared to provide appropriate training to the student, that the student will not replace a U.S. worker, and that the opportunity assists the student in achieving his or her goals.
• Terms and conditions of STEM OPT employment, including duties, hours and compensation, must be commensurate with the terms and conditions given to the employer’s similarly situated U.S. workers in the same area of employment. The rule does not impose specific requirements for demonstrating payment of a commensurate wage.  However, employers should document how they determined wages for STEM OPT students and be prepared to demonstrate that they are paying these students at a commensurate level.
• Students must complete, and employers must sign, self-evaluations analyzing the student’s progress towards the goals described in Form I-983. One evaluation must occur within 12 months of the STEM OPT start date; the other evaluation must occur at the end of the STEM OPT. Students must provide these evaluations to their DSO.
• If there are any material changes to the information provided in Form I-983, the student and the employer must sign a modified Form I-983 reflecting the changes and the student must submit the modified form to his or her DSO.  Material changes include changes to the employer’s FEIN, reductions in compensation, decreases in hours worked, circumstances that render the employer attestations inaccurate, and alterations that make the purpose, oversight and assessment of the STEM OPT inaccurate. Students who change employers during STEM OPT must also file a new Form I-983 within ten days.
• If a STEM OPT student is terminated or departs prior to the STEM OPT end date, the employer must report the termination or departure to the student’s DSO within five business days.
• DHS, at its discretion, may conduct site visits of any employer to ensure compliance. DHS will give employers 48 hours’ notice of a site visit unless the visit is triggered by a complaint or other evidence of noncompliance. 

Where can I find further information?

The full text of the rule is available at https://www.gpo.gov/fdsys/pkg/FR-2016-03-11/pdf/2016-04828.pdf. If you have questions regarding the information in this alert, please contact Carol A. Friend at cfriend@honigman.com (313.465.7374) or Meghan N. Covino at mcovino@honigman.com (313.465.7406).