Proposed 24-Month STEM OPT Extension: Detailed Outline

As the comment period for Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students is set to expire on November 18, 2015, we at Immigration in Plain English thought it necessary to outline the changes described in the 107 page proposed rule in plain English. What follows is a brief summary of the proposed change highlights, basic qualifications for F-1 and OPT, and then a break-down of each section of the proposed rule. There is still one week to make comments on any of the outlined subsections. DHS underlined the relevant text for which it is seeking comment in the public inspection document. We hope this provides some clarity as to the expected changes for the final rule of the 24-Month STEM OPT extension.

Summary of Proposed Rule

This proposed rule, if made final, would permit eligible STEM graduates to receive a maximum STEM OPT extension of 24 months; permit eligible STEM graduates who have obtained a second qualifying STEM degree to obtain a second STEM OPT extension of 24 months; permit eligibility for the extension based on a STEM degree that is not the student’s most recently obtained degree; limit eligibility for STEM OPT extensions to students that graduate from accredited institutions; require that students on STEM OPT extensions receive conditions of employment, including compensation, commensurate with similarly situated U.S. workers; require the disclosure of additional information, such as the student’s compensation, to ICE; implement a formal process to update the STEM Designated Degree Program list; implement a formal mentoring requirement for students on STEM OPT extensions; and require employers of students applying for STEM OPT extensions to enroll in and use E-Verify on all new hires.

Qualification for F-1 Students

  • Must be a nonimmigrant admission
  • Must be a full-time students
  • Must be enrolled in a full course of study
  • Must achieve a degree at the conclusion of study
  • Must be at a qualifying institution authorized by the U.S. government
  • Must have sufficient funds to self-support during the entire course of study

Qualification for Optional Practical Training (OPT)

  • Must be temporary employment
  • Must directly relate to course of study
  • Must complement course of study
  • May apply for 12 months of OPT at each education level
  • May be part-time, “pre-completion OPT”
  • May be full-time, “post-completion OPT”

Elements of Proposed STEM OPT Extension

A. STEM OPT Extension within OPT Program

  • Encourage international students consistent with September 2011 “Study in the States” initiative
  • Enhance U.S. economic, scientific and technological competitiveness
  • Expand post-graduate opportunities in the U.S.
  • Drive economic growth and cultural exchange in the U.S.

B. 24-Month STEM OPT Extension

  • STEM OPT extension for 36 months of practical training (12/mo OPT + 24/mo OPT STEM)
  • Unemployment period limited to 150 days
  • Students who complete 2nd STEM degree at a higher educational level permitted additional 24-month STEM extension
  • Applications submitted prior to the effective date of the proposed 24-month STEM OPT Extension final rule will be adjudicated under the 17-month extension regulations
  • Students on 17-month STEM may request a modified extension up to 120 days before the end of the student’s 17-month extension period once the proposed 24-month STEM Extension becomes final
  • Targeted to complement the complexity student’s academic experience and typical durations of research, development, testing and projects
  • Align the length of OPT + STEM with the length of grants or fellowships awarded by the National Science Foundation to universities, colleges, and research laboratories, which typically last 3 years

C. STEM Definition and CIP Categories

  • STEM Field includes those in the Department of Education’s CIP taxonomy within the summary groups containing mathematics, natural sciences (including physical sciences and biological/agricultural sciences), engineering/engineering technologies, and computer/information sciences, and related fields

D. Mentoring and Training Plan

  • Formal mentoring and training program required for employer sponsorship of STEM OPT
  • Employer must offer formal plan for practical training and skill enhancement
  • Student must  prepare “Mentoring & Training Plan” for review by Designated School Official (DSO)
  • Employer and student must design training plan that enhance practical skills and methods of degree
  • Student must provide DSO with evaluation of “Mentoring & Training Plan” goals every six (6) months
  • Employer must approve and sign “Mentoring & Training Plan” goal evaluation for submission to DHS

E. E-Verify Program

  • E-Verify program is an important measure to ensure the integrity of the STEM OPT extension
  • E-Verify is currently free to employers and is available in all 50 states, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands
  • E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 (herein Form I-9) with records contained in government databases to help employers verify the identity and employment eligibility of newly-hired employees.
  • E-Verify requires an employer to enter into a Memorandum of Understanding with DHS and SSA whereby the employer agrees to abide by current legal hiring procedures and to follow the E-Verify process, which is designed to prevent unauthorized disclosure of personal information and unlawful discriminatory practices based on national origin or citizenship status

F. Previously Obtained STEM Degrees

  • Students may use a previously obtained and directly related STEM degree from an accredited school as a basis to apply for a STEM OPT extension, even if the current OPT is not based on a STEM degree
  • Students would not be able to use a previously obtained degree to obtain a STEM OPT extension immediately subsequent to another STEM OPT extension, so two consecutive STEM extensions would not be permitted
  • The DSO of the student’s school of most recent enrollment would be permitted to certify prior STEM degrees
  • STEM degrees from foreign institutions would not be permitted to qualify under the previously obtained degree proposal

G. Safeguarding U.S. Workers through Labor Market Protections

  • Employer must attest to the following
  • (1) the employer has sufficient resources and personnel available and is prepared to provide appropriate mentoring and training in connection with the specified opportunity;
  • (2) the employer will not terminate, lay off, or furlough a U.S. worker as a result of providing the STEM OPT to the student; and
  • (3) the student’s opportunity assists the student in attaining his or her training objectives
  • Terms and conditions of STEM practical training opportunity, including duties, hours, and compensation, be commensurate with those provided to employer’s similarly situated U.S. workers

H. Oversight through School Accreditation and Employer Site Visits

  • Qualifying degrees for the STEM OPT extension must be from accredited U.S. institutions of higher education
  • ICE, at its discretion, may conduct “on-site reviews” to ensure that employers meet program requirements, including compliance with assurances regarding the ability and resources to provide structured and guided work-based learning experiences according to the individualized Mentoring and Training Plans

I. Additional Compliance Requirements

  • Employers must report to relevant DSO when F-1 student on STEM OPT extension terminates or otherwise leaves his or her employment prior to the end of the authorized period of OPT within 48 hours of employment termination
  • Students who are granted STEM OPT extensions are required to report to their DSO every six months, confirming the validity of their SEVIS information, including legal name, residential or mailing address, employer name or address, and/or loss of employment
  • Student seeking an extension would be required to properly file Application for Employment Authorization within 60 days of the date the DSO enters the recommendation for the STEM OPT extension into the SEVIS record

J. Cap-Gap Extension for F-1 Students with Timely Filed H-1B Petitions

  • Cap-Gap relief would continue to allow for automatic extension of status and employment authorization for any F-1 student with a timely filed H-1B petition and request for change of status, if the student’s petition has an employment start date of October 1 of the following year

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