New OPT STEM Rule Extends Employment Period for Foreign Students; Imposes New Obligations on Employers

The Department of Homeland Security (DHS) has published a revised rule which allows foreign students with degrees in science, technology, engineering, and math (STEM) to extend their 1-year period of Optional Practical Training (OPT) by 24 months (the prior rule only allowed a 17-month extension). Although the new rule significantly expands employment opportunities for foreign students, it also imposes new obligations on employers, which are summarized below.

Requirements for Foreign Students

• To qualify for the 24-month STEM extension, the foreign student must be in valid OPT status and must have earned a STEM degree from an accredited college or university in the United States.
• Unlike the prior rule, the new rule permits the student to apply based on a prior STEM degree, even if the current OPT is based on a non-STEM degree. However, the practical training opportunity must be directly related to the prior STEM Degree.
• The new rule also allows students who obtain a second STEM degree to apply for a second 24-month STEM extension, thus expanding the total allowable period of OPT up to 6 years (2 periods of 1-year OPT after completion of each STEM degree, each followed by a 2-year STEM extension).
• To apply for the STEM extension, the student must file Form I-765 with USCIS on or after May 10, 2016.
• The application must be submitted up to 90 days before the current OPT expires and within 60 days after the DSO enters the recommendation for OPT into the student’s SEVIS record.
• Students who are already employed on a 17-month STEM extension (or whose 17-month STEM extension is pending as of May 9, 2016) can apply for a 7-month extension, provided that (1) the student has at least 150 days left on his or her current STEM OPT and (2) the application for the 7-month STEM extension is filed between May 10 and August 8, 2016.

Requirements for Employers of STEM Graduates

• Must be enrolled in E-Verify.
• Must implement a formal training program to augment the student’s learning through practical experience and must provide at least 20 hours of work per week.
• Must report material changes to the student’s employment to the DSO within 5 business days.
• Must provide a training opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours and compensation.
• Must complete Form I-983, Training Plan for Stem OPT Students, attesting that:
  • the employer has enough resources and trained personnel available to train the student;
  • the student will not replace a full- or part-time, temporary or permanent U.S. worker; and
  • the employment will help the student attain his or her training objectives and must have a direct relationship to the student’s STEM degree.
• Must recognize that U.S. Immigration and Customs Enforcement (ICE) may visit the worksite to verify whether the employer is meeting the STEM OPT requirements, including whether it is maintaining the ability and resources to provide structured and guided work-based learning experiences for the STEM OPT student.

Further information on the new STEM OPT rule can be found on the USCIS web site at the following links:

• https://www.uscis.gov/working-united-states/students-and-exchange-visitors/students-and-employment/stem-opt
• https://studyinthestates.dhs.gov/stem-opt-hub 
• https://studyinthestates.dhs.gov/employers-and-the-form-i-983 
• https://www.ice.gov/sites/default/files/documents/Document/2016/i983Instructions.pdf 

Questions and inquiries may also be directed to any member of DWT’s immigration team listed above.