U.S. Department of Homeland Security (DHS) Issues Final

The U.S. Department of Homeland Security (DHS) has issued a final rule on Optional Practical Training (OPT) for F-1 students with degrees in the Sciences, Technology, Engineering, and Mathematics (STEM). Please carefully read key provisions of the final rule in the following article.

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Aug 30, 2016

International students who wish to come to the United States (U.S.) to study at a U.S. college or university are issued an F-1 visa.These F-1 students, following the completion of their academic program in the U.S., are often issued Optional Practical Training (OPT).The purpose of OPT is to allow F-1 students to supplement their academic knowledge with valuable work experience after earning their U.S. degree. The U.S. Department of Homeland Security (DHS) has issued a final rule on Optional Practical Training (OPT) for F-1 students with degrees in the Sciences, Technology, Engineering, and Mathematics (STEM). This final rule was effective May 10, 2016, and extends the period an F-1 student may pursue OPT in the U.S. after completing his or her degree in a STEM field.Key provisions of the final rule has been codified at 8 CFR § 214(f)(10) and include the following:

  • Replaces the 17 month OPT extension period with a new 24 month OPT extension period for F-1 students with STEM degrees. (Note: F-1 students have an initial period of OPT of 12 months after completing their degree program. Those students with U.S. STEM degrees have this 12 month period, plus, an additional 24 months of OPT under the final rule.)
  • E-Verify: The final rule affirms that a student is only eligible for a 24 month STEM OPT extension, if the employer the student will be working for on STEM OPT is an E-Verify employer.
  • Cap Gap Relief: The new rule affirms the previous cap-gap relief continues to be available for those F-1 students that file H-1B cap petitions before their F-1 OPT expires (Note: This rule applies to all students whether on Non-STEM OPT or STEM OPT.)
  • Two STEM Extension Periods: The new rule indicates that a student may be eligible for up to two separate STEM OPT extensions over the course of his or her academic career in the U.S., upon completing two qualifying STEM degrees at different educational levels.
  • Formal Training Plan: Each STEM OPT student must prepare and execute with their prospective employer a formal training plan that identifies learning objectives. The STEM OPT student and E-Verify employer will need to work together to finalize the plan.
  • School Must be Accredited: The new rule affirms that the STEM OPT must be from an accredited school in order to be eligible.
  • Increases the Number of Days of Permissible Unemployment: Allows a STEM OPT student a period of up to 150 days of unemployment.
  • DHS Site Visits: The new rule indicates that DHS will be responsible for conducting site visits of employers that employ STEM OPT students, and notice will be given by DHS of the site visit. However, unannounced site visits may occur, if the site visit is triggered by a complaint or other evidence of noncompliance.
  • Reporting Requirements: The new rule imposes four reporting requirements. The reporting will be at six months (student and DSO work together to confirm student’s residence, lawful status and employment, etc.), one year (student reports to DSO on progress of his or her training), changes (departure of student, or termination of employment must be reported), and deviations (changes in training plan must be reported).
  • Specific Employer Obligations and/or Attestations to Safeguard Integrity of STEM OPT Program:

  1. The employer must be in good standing with the E-Verify program;
  2. The employer will assist with reporting and training plan requirements;
  1. The Employer attests it has sufficient resources and trained personnel available to provide appropriate training;
  1. The Employer attests the STEM OPT student will not replace a full-time or part-time temporary or permanent U.S. worker;

5) The Employer attests the training opportunity helps the student attain his or her training objectives.

The comments to the final rule note that as of September 16, 2015, over 34,000 students in the U.S. were on STEM OPT, compared to more than 1.2 million international students studying in the U.S.The comments to the final rule also note that the 34,000 F-1 students currently on STEM OPT represent less than 0.05% percent of the U.S. STEM job market.

While this final rule will impose some burden on U.S. employers and universities with respect to reporting requirements and developing formal training programs, the final rule will help the U.S. retain foreign nationals, who have pursued STEM degrees at U.S. academic institutions.

For more information on this subject, please contact Fakhoury Law Group, Melissa Winkler, Immigration Attorney at melissa@employmentimmigration.com.

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Desiree Schulz

Manager of Global Operations, Fakhoury Global Immigration

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