The Department of Homeland Security Previews Final Rule Governing STEM OPT
Today, March 9, 2016, the Department of Homeland Security previewed the final rule governing STEM OPT, to be released on Friday. This rule is effective May 10, 2016, except the addition of 8 CFR 214.16, which is effective from May 10, 2016 through May 10, 2019. Under the new rule, a qualifying F-1 student with a STEM degree who has been granted 12 months of practical training may apply for a 24-month extension of his or her practical training. This is commonly referred to as the STEM OPT extension. In this alert we will highlight the top provisions of the new rule.
Background
After receiving the most comments in the history of the Department of Homeland Security, the government petitioned for additional time to finalize the rule. Publishing Friday, the rule will come into effect May 10, allowing 60 days for implementation and adjustment of current procedures.
Highlights of the New Rule
In addition to lengthening the time allowed under the STEM OPT extension from 17 to 24 months, the new rule outlines new requirements to “improve the educational benefit” of the STEM OPT program and provides “safeguards” to ensure that STEM OPT employees are not replacing US workers.
One of the major new requirements is the introduction of a training plan. This plan must outline the educational benefit of the employment and be linked to the individual’s STEM degree. A major benefit of the new rule is that it allows F-1 students to apply for a STEM OPT extension based on a prior STEM degree from an accredited US educational institution, as long as the prior qualifying degree was granted within the prior ten years. This expansion of the rule means that qualifying F-1 students will be able to secure two separate 24-month STEM OPT extensions.
One of the “safeguards” introduced under the new rule stipulates that duties, hours, and compensation must be commensurate with those of “similarly situated US workers.” Only students at schools accredited by an agency recognized by the US Department of Education will able to apply for the STEM extension.
For employers, the rule stipulates that:
1. The employer must be enrolled and in good standing in E-Verify,
2. The employer must assist with the development of the training plan,
3. The employer must attest that (a) It has “sufficient resources and trained personnel available” to support the STEM OPT trainee; (b) the student will not replace a full- or part-time temporary or permanent US worker; and (c) the opportunity at the company “helps the student attain his or her training objectives.”
The previously introduced “Cap Gap”, allowing individuals for whom an employer has filed an H-1B petition with a change of status request to continue working between the expiry of their OPT and the beginning of the H-1B petition, remains in effect.
In order to enforce the new rule, the rule itself introduces new site visit and reporting requirements. DHS will now implement site visits for STEM OPT students, which we predict to be similar in nature to those conducted now for H-1B and L-1 employers. The reporting requirements are largely incumbent on the student, who needs to report training program updates to the Designated School Official. But employers will need to sign off on these reports as well.
Guidance for Employers
We anticipate that employers will be concerned about the new training plan requirements. Please reach out to your Mintz Levin attorney with any questions or concerns about your current or potential F-1 student training programs.
Please stay tuned for further detailed updates regarding these new STEM OPT rules.
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