Siskind Summary: The Final STEM OPT Rule

Posted on: March 9th, 2016
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The Department of Homeland Security has issued a regulation that covers one of President Obama’s more significant employment-based executive action proposals. This followed the issuance of a proposed rule in October 2015 that was responding to a judge’s order striking down the existing F-1 Optional Practical Training 17-month extended EAD program for people with degrees in science, technology, engineering, or math (STEM) fields because of a lack of notice and commenting opportunity in the issuance of the 2008 interim rule. The judge gave the government until February to have a replacement rule in place and, after receiving an extension, USCIS has issued its final rule.  The rule makes various changes to the F-1 STEM Optional Practical Training program and includes formal rule making for the cap-gap program, but there are very few changes from the proposed rule.

Here are the 20 most important takeaways from the final rule.

  1. The rule is effective May 10, 2016. 17 month OPT extensions will be accepted through May 9th. Applicants with cases still pending on that date will receive an RFE essentially giving the applicants a chance to amend their applications to comply with the new rules including submitting a training plan on the new Form I-983. Adjudications from May 10th onward will apply the new rules and not, as the proposed rule had suggested, the rule in place at the time the application was filed. Any 17-month EAD issued prior to May 10th will remain valid until expired or revoked.
  2. In 2008, DHS issued an interim final rule that created a STEM OPT program where individuals who received a degree in certain science, technology, engineering and math fields could receive an additional 17 months of optional practical training beyond the 12 months open to most F-1 students. Employers have to participate in E-Verify. The new rule expands this to 24 months of additional OPT.
  3. A double major qualifies as long as one of the majors was in a STEM field.
  4. A STEM OPT job must be for at least 20 hours per week.
  5. If a student uses the STEM OPT 24-month period and then enrolls in a new higher level STEM program, the student would be entitled to a new 24-month STEM extension (plus the 12 months of regular OPT).
  6. The rule defines which STEM categories qualify based on the Department of Education’s CIP taxonomy and includes groups containing mathematics, natural sciences (including physical sciences and biological/agricultural sciences) engineering/engineering technologies and computer/information systems and related fields. Health and social sciences are not included. DHS will publish a list of accepted STEM fields on the SEVIS web page at http://www.ice.gov/sevis and also update the Federal Register when the list changes.
  7. Employers will need to implement formal training plans for STEM OPT employees (using form I-983). Employers must also have a process in place for evaluating the OPT employee on an annual basis to demonstrate that the student is making progress toward their training objectives. And there is a formal process for modifying the training plan that involves both the employer and student signing a modified plan and submitting it to the DSO. Existing training plans can be used as long as they conform to OPT rules.
  8. The training plan must (1) identify the goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student; (2) explain how those goals will be achieved through the work-based learning opportunity with the employer; (3) describe a performance evaluation process; and (4) describe methods of oversight and supervision.
  9. STEM OPT extensions are available to people in non-STEM programs if the F-1 student earned an earlier STEM degree from an accredited, SEVIS-enrolled US institution (determined at the time the extension is filed) within the past ten years (even in a status other than F-1). The new position must be in the same STEM-related field. For example, if a person gets an MBA after getting a STEM degree and then works for a company where the STEM background is needed, this might be eligible for STEM OPT. Overseas campuses of US institutions are not eligible.
  10. US worker protections are now included in the program and the employer must sign an attestation covering the following: a) the employer showing it has the resources and personnel available to provide training, b) the employer being forbidden from replacing a full- or part-time, temporary or permanent US worker as a result of hiring a STEM OPT worker (unless for cause), and c) the training must be in the student’s field.
  11. Only accredited schools may participate in the STEM OPT program and DHS (through ICE) has the discretion to conduct on-site inspections at employer work sites to determine compliance. DHS will give 48 hours’ notice of a visit unless it is investigating a complaint or suspected violation.
  12. Students currently are allowed to be unemployed for 90 days during the initial 12 month OPT and up to 30 days during the STEM extension. The new rule would allow up to 60 days in the STEM extension period.
  13. The existing E-Verify requirement remains unchanged as does the existing school reporting requirement and the cap-gap extension program.
  14. F-1 students currently in STEM OPT would be able to request extensions for the additional 7 months as long as they apply within 120 days of the end of their 17-month period and the employer meets the new employer requirements.
  15. The rule requires that the terms and conditions of an employer’s STEM practical training opportunity – including duties, hours and wages – be commensurate with similarly situated US workers either in the company or, if there are no others, in the same geographic area of employment. Using DOL wage data is one way to demonstrate this. Employers will be required to provide wage information to DHS in the training plan.
  16. Volunteer positions will not qualify under the new rule
  17. DHS is working on a new technology that would allow students to update some of their own information themselves in SEVIS.
  18. The rule authorizes a recurring evaluation process allowing ICE to monitor student progress during the OPT period consistent with the training plan.
  19. Employers, just as in the 2008 rule, must report departures of STEM OPT F-1s within 5 days and the F-1s must report to the DSO every six months. New compliance requirements include the following:
  • STEM OPT employers must have an Employer ID Number
  • EAD applications must be submitted within 60 days of the DSO entering the student information in SEVIS (versus 30 days under the current rule