The Department of Homeland Security (DHS) recently published for notice and comment proposed new rules relating to the STEM extension of Optional Practical Training for F-1 students. DHS undertook this regulatory process due to the ruling by the United States District Court for the District of Columbia, discussed in SPS Immigration’s August 13, 2015 post. DHS will accept comments until November 18, 2015, and will then review the comments before issuing a final rule.
The proposed rule, if implemented in its current form, would make a number of substantial changes to the existing STEM OPT program. It would also require significantly more employer involvement in the process to ensure that F-1 students engaged in STEM OPT employment are in fact gaining additional skills relating to their program of study. The key changes in the proposed rule include the following:
- A STEM OPT extension will be available for 24 months, rather than the current 17 months.
- It will be more clear which fields of study will qualify for a STEM OPT extension as DHS will use the Department of Education’s Classification of Instructional Program (CIP) criteria.
- Employers will need to submit a detailed training plan for the STEM OPT student that includes specific training goals as well as a description of how student will achieve the goals. The student will need to check in with his/her school official every six months regarding the progress of the training program, and will participate in a final evaluation at the conclusion of the STEM OPT period. The compensation to be paid to the STEM OPT student will need to be included as part of the training plan.
- A student with a previously obtained STEM degree from an accredited U.S. college or university will be eligible for a 24-month STEM extension even if his/her current degree field is not in a STEM field, as long as the employment is directly related to the previous STEM degree. This would allow, for example, someone with an undergraduate U.S. degree in engineering who is now pursuing an MBA to obtain a 24-month STEM OPT extension if his/her STEM OPT employment relates to the engineering degree.
- To protect U.S. workers, the employer will be required to offer to the STEM OPT worker the same compensation and terms and conditions of employment as it is offering to similarly employed U.S. workers. The employer will also have to specifically attest that it will not terminate, lay off, or furlough any full- or part-time, temporary or permanent U.S. workers as a result of providing the STEM OPT employment to the student.
- DHS will have authority to conduct random site visits to ensure the STEM OPT employment is compliant with the employer attestations.
The proposed rule would affect only STEM OPT extensions. The existing 12 month OPT program available to F-1 students will not change. It is important to understand that the rule is currently only a proposed regulation. It is not yet known whether, or how, the rule will change when promulgated in its final form. If you have questions about the proposed STEM OPT rule, or if you would like assistance in submitting a comment on the proposal, please contact SPS Immigration PLLC.