The U.S. Department of Homeland Security (DHS) released an advance draft of its final STEM OPT rule today, March 9, 2016, which will permit certain foreign students with degrees in STEM (Science, Technology, Engineering, and Math) fields to extend their Optional Practical Training (OPT) period by 24 months. The will go into effect on May 10, 2016, just in time to meet the date on which the District Court’s May 10th vacatur of the prior rule will occur and avoid a gap between the regulations, which could have had a significant impact on STEM students and employers. DHS released its preview copy of the final rule this morning and the official version of the rule is set to be published in the Federal Register on Friday, March 11, 2016.
We have provided an outline of the major provisions of the new rule, which also contains additional requirements and obligations for STEM OPT students and employers.
Expanding STEM OPT from 17 to 24 Months and Permitting Use of Prior STEM degrees and 2 Separate STEM OPT extensions
Under the new rule, certain foreign students in F-1 status with degrees in science, technology engineering, or math will be able to extend their initial 12-month OPT period by an extra 24 months, for a total of 36 months (an increase from the prior rule which permitted STEM students to extend their OPT period by only 17 months). DHS said that any 17-month STEM OPT work permits issued before May 10 will remain valid for the 17-month period permitted under the old rule, but that, beginning on May 10, certain students will have a chance to apply for an additional seven months of STEM OPT to bring them to the full 24 months permitted under the new rule. The new rule also contains several additional provisions that expand STEM OPT availability, including:
- Permitting students to use a prior STEM degree as basis of a STEM extension so long as both the prior STEM degree and the current non-STEM degree were received from currently accredited educational institutions and the practical training opportunity is directly related to the previous STEM degree
- Providing eligibility for up to two separate STEM OPT extensions over the course of a student’s academic career, upon completing two qualifying STEM degrees at different educational levels.
- The rule retains the prohibition on 90 days or more of unemployment during the initial grant of OPT but expands the amount of permissible unemployment for STEM OPT from 30 days to 60 days for students who obtained a 24-month grant of STEM OPT.
Additional Obligations on STEM OPT Students
The new rule continues to require STEM OPT employers to be enrolled E-Verify users in good standing. The new rule also continues to require the the practical training pursuant to STEM OPT to be directly related to the student’s major area of study. In addition to providing additional STEM OPT time to qualifying students, the new rule also places new, additional obligations on STEM OPT students including:
- The STEM degree must be awarded from an accredited U.S. college or university
- The rule defines which fields of study (more specifically, which Department of Education Classification of Instructional Program (CIP) categories) may serve as the basis for a STEM OPT extension
- Each STEM OPT student must prepare and execute with their prospective employer a formal training plan that identifies learning objectives and a plan for achieving them
- STEM employers are now subject to announced and unannounced DHS site visits at locations where they are employing STEM OPT students
- New reporting requirements are placed on STEM students and Designated School Officials (DSOs) including a six month validation requirement, an annual self-evaluation requirement, a requirement to report changes in employment status (including termination or departure), an obligation to report materials changes to or deviations from the formal training program to the DSO
Additional Obligations on STEM OPT Employers
Moreover, the new rule places additional requirements and obligations on STEM OPT employers intended to ensure the integrity of the program and provide safeguards for U.S. workers in STEM fields including assisting with the above-mentioned training plan and attesting that the employer has (1) sufficient resources and trained personnel to provide the specified training; (2) the STEM OPT student will not replace a U.S. worker; and (3) the opportunity helps the student attain his or her training objectives.
More Updates to Come...
In the 60 days preceding the effective date of the new rule additional guidance is expected from DHS which explains how these new STEM obligations will be monitored and reported by employers, students, and DSOs.
D&S will continue to monitor this developing situation and provide updates as they become available.
UPDATE: On March 15, 2016, the Immigration & Customs Enforcement's (ICE) Student & Exchange Visitor Program (SEVP) Website has been updated to provide additional guidance on procedures for requesting the full 24 month STEM extension for individuals whose applications are approved prior to May 10, 2016, or still pending as of May 10, 2016. Additionally, the Website contains the new Form I-983 Training Plan for STEM OPT Students that must be completed and submitted to the DSO prior to a grant of STEM OPT under the new rule.