The New STEM OPT Work Authorization for Foreign Students
On March 11, 2016, the U.S. Department of Homeland Security (DHS) published its Final Rule regarding the implementation of the new STEM OPT work authorization program for foreign students who are present in the U.S. in F-1 status. The new STEM OPT rule goes into effect on May 10, 2016. This article provides an overview of the new STEM OPT and discusses the transition from the previous STEM OPT program.
What is OPT?
In general, undergraduate or graduate students in F-1 status may be approved for a 12-month post-completion Optional Practical Training (OPT), which provides them employment authorization to gain practical knowledge related to their field of study (except English language training programs). The new rule does not change the eligibility or validity period of the general 12-month OPT program.
What is STEM OPT?
In 2008, DHS implemented the STEM OPT program which allowed individuals graduating with a Science, Technology, Engineering or Mathematics degree from a U.S. college or university to obtain an additional OPT period (STEM OPT) valid for 17 months. Effective May 10, 2016, the terms of the STEM OPT program will change as described below.1
What is the validity period under the new STEM OPT rules beginning May 10, 2016?
The new STEM OPT extension may be obtained for a validity period of up to 24 months (as opposed to the previous 17-month extension under the old rule). Therefore, under the new rule, eligible F-1 students graduating with a STEM degree may get OPT for up to 36 months (12 months for initial OPT + 24 months STEM OPT).
How many times can STEM OPT be obtained?
The new rule allows for two (2) STEM OPT periods. The second STEM OPT is available to F-1 eligible students who obtain another qualifying STEM degree at a higher educational level than the previous one.
Does an employer hiring a STEM OPT employee still have to be enrolled in E-Verify?
Yes. The new STEM OPT rule maintains the eligibility requirements of the old rule with regard to E-Verify.
Does the new STEM OPT have additional or different requirements than the old rule?
Yes. The new STEM OPT imposes several new requirements, including but not limited to the following:
- Students and their employers will be required to provide a formal training plan to the Designated School Officer (DSO) from the student’s U.S. accredited college or university. The training plan must identify the learning objectives as well as a plan for reaching those objectives.
- Employers must certify that the terms and conditions of the training program are commensurate with those applicable to the employer’s similarly situated U.S. workers in terms of hours, duties and compensation. If the employer does not employ (or has not recently employed) more than two similarly situated U.S. workers, the employer must still certify that the duties, hours and compensation under the STEM OPT program are commensurate with those for similarly situated U.S. workers in the area of employment.
- Employers must also certify that they have sufficient resources and personnel available to provide the appropriate training during the authorized STEM OPT period.
- The student and the employer must submit periodic information to ensure continued compliance with the STEM OPT program.
- If the employment ends prior to the end of the authorized STEM OPT period, the employer is required to report the separation to the DSO at the applicable college or university within five days.
- If there are any material changes in the terms and conditions of employment during the authorized STEM OPT period, the student and the employer must submit a new training plan.
What about students who applied (or apply) for STEM OPT before May 10, 2016?
During the transition period between the old and the new STEM OPT rule, STEM OPT applications for employment authorization filed with the U.S. Citizenship and Immigration Services (USCIS) will be adjudicated as follows:
- If the application with USCIS is approved before May 10, 2016, the STEM OPT will be issued for 17 months and the program will be governed by the old rule.
- If the application with USCIS is still pending on May 10, 2016, then USCIS will issue a Request for Evidence (RFE), seeking additional evidence showing that the student and the employer meet the requirements under the new STEM OPT rule. If the additional evidence submitted is satisfactory, USCIS will approve the STEM OPT for 24 months and the program will be governed by the new rule.
Is it possible to convert an already approved 17-month STEM OPT under the old rule into a 24-month STEM OPT under the new rule?
Yes, if certain conditions are met. A student with an approved 17-month STEM OPT may request a seven-month extension (therefore stretching their existing STEM OPT to 24 months), if all of the following requirements are met:
- At the time of submitting the application with USCIS, the student has at least 150 calendar days remaining before the expiration of the 17-month STEM OPT period.
- The application seeking the additional seven months must be filed with USCIS within 60 days of the date the 24-month recommendation is entered by the DSO in the SEVIS system.
- The application seeking the additional seven months of authorized STEM OPT must be filed with USCIS between May 10, 2016 and August 8, 2016.
- All other eligibility requirements under the new STEM OPT rule are met (such as the training plan).
We will monitor the development and implementation of the new STEM OPT rule and will post any relevant updates, as applicable. In the meantime, if you have any questions regarding the new STEM OPT or any other U.S. immigration provisions, please do not hesitate to contact us at (608) 252-9291 or firstname.lastname@example.org.
1For additional details regarding the need and timing of the new requirements, see http://www.dewittross.com/news-education/posts/2016/03/09/department-of-homeland-security-takes-steps-toward-a-new-stem-opt-extension-program
About the Author
Raluca has assisted numerous clients with immigration matters ranging from family-based and individual immigration applications, to employment related visas and I-9 Employment Eligibility Verification issues. In addition to her immigration practice, she also has an extensive background in Employment Law. She assists companies in a number of areas, including but not limited to claims of workplace discrimination, harassment and retaliation, termination and constructive discharge, workplace investigations by state and federal agencies, as well as employment litigation.
Contact Luca by email or by phone at (608) 252-9291.
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