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SIGNIFICANT CHANGES TO STEM OPT FOR F-1 STUDENTS UNDER NEW RULE

SIGNIFICANT CHANGES TO STEM OPT FOR F-1 STUDENTS UNDER NEW RULE

The Department of Homeland Security (DHS) has made significant changes to the STEM optional practical training (OPT) program which will be effective for all F-1 applications for STEM OPT extensions approved on or after May 10, 2016.

The "exciting" news is that the new rule increases the length of the STEM OPT extension to 24 months. 24 months of work authorization instead of 17? Sounds great! Probably gives us a 3rd chance at that 1 in 3 shot H-1B lottery and the third time's a charm and all. But have you asked: What do we have to do now???

What is STEM OPT?

Seasoned veterans, skip ahead. I'm sure, however, that some of you are asking what STEM OPT is. Students who are in the US on an F Visa are generally eligible for up to 12 months of "regular" OPT employment authorization that is directly related to the student's major or area of study. OPT may be used prior to completing the degree (pre-completion OPT) if the student has been enrolled for at least one full academic year or may be used after completing their studies (post-completion OPT). Students may participate in both pre- and post-completion OPT, but the time used in pre-completion OPT will be deducted from the time allowed in post-completion OPT. In order to apply for "regular" OPT, the student requests his or her designated school official (DSO) at his or her university to recommend the OPT by endorsing his or her Form I-20 and making the appropriate notation in the Student and Exchange Visitor Information System (SEVIS). The student then files a Form I-765 Application for Employment Authorization with USCIS himself (or with the help of his or her university). The employer is not required to do anything for that application.

Students who have earned degrees in certain science, technology, engineering, and math (STEM) fields and are employed by an employer enrolled in E-Verify may apply for an additional period of post-completion OPT. Starting May 10 it is that STEM OPT period is increasing from 17 month to 24 months.

The following steps are required in order to apply for a STEM OPT extension under the new rule:

  • The F-1 student and the employer must prepare and execute a training plan on new "Form I-983 Training Plan for STEM OPT Students" (more on this Form below);
  • The student then submits the Form I-983 to his or her DSO who must confirm the STEM degree and that the employer and employment opportunity meet the STEM OPT requirements;
  • The DSO enters the recommendation for STEM OPT in SEVIS and issues the student a new Form I-20 noting the 24-month STEM extension;
  • The student files Form I-765 application for an EAD (Note: students with "regular" OPT receive an automatic 180-day extension of work authorization if their 12-month OPT expires while the STEM OPT extension is pending).

Students who currently have a 17-month STEM extension who want to add 7 months to the extension may file and application for the additional time between May 10, 2016 and August 8, 2016, if they have at least 150 days of valid work authorization remaining on the date of filing. (If you are doing the math, this means students with STEM extensions expiring - approximately - between October 8, 2016 and January 5, 2017.)

Students who have a 17-month STEM OPT extension pending on May 10, 2016 will receive a request for evidence allowing them to demonstrate that they are eligible for the 24-month period.

What are the Employer's Responsibilities under the new STEM OPT rule?

Under the previous STEM OPT rule, little was required of employers, other than being enrolled in E-Verify (which is still required). In contrast, under the new STEM OPT rule employers will now play a significant role.

Completion of Form I-983

Aside from the increase from 17 to 24 months, by far the most notable change to the STEM OPT program is the implementation of a formal training plan requirement. This formal training plan is documented on the above-mentioned new Form I-983, which the students can obtain online. The student and employer must then work together to complete Form I-983.

The purpose of the Training Plan is to articulate the student's learning objectives and affirm the employer's commitment to helping the student achieve those objectives. DHS has stated that employers may use existing training programs so long as they address the requirements of the new rule. The Form I-983 Training Plan must include:

  • A description of the student's role with the employer and how that role is directly related to the student's STEM degree. The plan must cover a specific span of time and detail specific goals and objectives.
  • A description of how the assignments with the employer will help the student achieve his or her specific objectives. This description should specify the specific skills, knowledge and techniques the student will learn or apply and an explanation as to how the student will achieve the goals set out for the training opportunity, as well as the training curriculum and timeline.
  • An explanation about how the employer will provide oversight and supervision of the STEM OPT student.
  • Information about the measures and assessments the employer will use to confirm that the STEM OPT student is acquiring new knowledge and skills.

In addition to information on the training program, the Form also requires the employer to provide general information including the company name, mailing address, website, FEIN, NAICS (North American Industry Classification System) code, number of full-time employees, start and end date for OPT employment, the student's hours per week (a minimum of 20), and compensation information.

The employer must also attest that the student on the STEM OPT will not replace a full-time or part-time temporary or permanent US worker, that the terms and conditions of the STEM OPT student's employment are commensurate with similarly situated U.S. workers, and that the statements provided on the Form I-983 are true and correct. (The term "similarly situated U.S. workers" includes U.S. workers performing similar duties and with similar educational backgrounds, employment experience, levels of responsibility and skill sets as the STEM OPT student. If the employer does not employ and has not recently employed more than two similarly situated U.S. workers, the employer must instead ensure that the terms and conditions of the STEM OPT opportunity they offer is commensurate with those similarly situated U.S. workers employed by other companies of analogous size and industry and in the same geographical area of employment.)

Once the Form is completed, the student submits it to his or her DSO. The DSO is responsible for determining that the Training Plan is complete, signed, and has addressed all requirements before making the recommendation for STEM OPT in the student's SEVIS record. The DSO is responsible for keeping and storing the Form I-983, as well as making Form I-983 available to the Student and Exchange Visitor Program (SEVP) or DHS as requested.

Employer Reporting Requirements

Once the student has begun working on the STEM OPT, employers must report any Material Changes to the information documented on Form I-983 to the DSO. Material changes include but are not limited to any change in ownership or corporate structure that results in a change in the FEIN, any significant reduction in hours or compensation, any significant change in duties, or any reduction of hours below the 20-hour-per-week minimum.

In addition, the employer and the student both must notify the DSO when the student's employment is terminated for any reason prior to the end of the authorized STEM OPT extension period. The employer must report the termination no later than 5 business days after the termination.

Take note: employers should be aware that DSO's are required to report Employer noncompliance.

Evaluation of Student Progress

The new STEM OPT rule requires students to complete self-evaluations of their progress and document that evaluation on the Form I-983 within 12 months of the listed STEM OPT start date and at the completion of the STEM OPT period. The employer must review each evaluation for accuracy and sign and date the evaluation. The student returns each evaluation to the DSO for recordkeeping. Each evaluation must be submitted within 10 days of the end of the applicable evaluation period.

Site Visits

Finally, employers should be aware that a new provision in the STEM OPT rule allows DHS to perform site visits to employer locations with STEM OPT employees. Site visits are likely to include checking information related to the student's employment and ensuring that the student is engaging in work-based learning consistent with the Form I-983 and may include interviews of the student or supervisors depending on the components of the Training Plan. DHS will provide notice of the site visit at least 48 hours in advance, unless the visit is triggered by a complaint or other evidence of noncompliance.

Phew! That seems like a lot to take in. Important take aways:

  • STEM OPT is increasing from 17 to 24 months - hooray!
  • F-1 students on STEM OPT extensions must receive wages commensurate with similarly situated workers.
  • Formal Training Plans are now required for STEM OPT extensions. Your F-1 student employees may have already started asking you (or will be asking you shortly!) to help them complete Form I-983.
  • Self-evaluations with employer confirmation are required.
  • Material changes must reported to the F-1 student's DSO.
  • Termination of employment must be reported to the student's DSO.

The foregoing covered notable points for employers. There are several other changes that do not require any action by employers including: an expansion of STEM categories, two lifetime STEM OPT opportunities, STEM OPT extensions based on previous degrees (with restrictions), increasing time limits for unemployment, and EAD processing consolidation at a new service center, among others.

If you would like to discuss STEM OPT requirements, changes, or compliance, please contact our business immigration attorney, Kristin Crone, at kcrone@fraserstryker.com or 402-978-5344.

Additional information can be also be found at 81 FR 48 (March 11, 2016), or on

https://studyinthestates.dhs.gov/stem-opt-hub or

https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/stem-opt.