Proposed Regulation to Extend Optional Practical Training (OPT) for F-1 Students with STEM Degrees

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1 Proposed Regulation to Extend Optional Practical Training (OPT) for F-1 Students with STEM Degrees The Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking in the Federal Register, entitled Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students. DHS will accept comments on the proposed rule through November 18. OPT STEM Extension Duration F-1 students who have earned degrees in science, technology, engineering, and mathematics (STEM) fields of study are eligible to apply for a 24 month extension of Optional Practical Training (OPT). Today, the STEM extension is limited to 17 months. When combined with the initial 12 month OPT program, a STEM graduate may secure up to 3 years of OPT. Students currently on the 17 month STEM OPT extension will be eligible to request an extension of time under the new regulation so that they receive the full 24 months of OPT. A student may secure another 24 months of OPT if the student subsequently earns another qualifying U.S. STEM degree at a higher educational level. However, a second STEM extension could not immediately follow (i.e. be linked with) the previous extension. An F-1 student may obtain an OPT extension even if the qualifying STEM degree was not his or her most recent degree. However, the degree that serves as the basis of the STEM extension must have been earned within the previous 10 years, must directly relate to the STEM OPT employment opportunity, and must be from an accredited U.S. university. Under current rules, an F-1 student is eligible for the OPT extension only if his or her most recent U.S. degree is in a qualifying STEM field. Qualifying Institutions and Degrees To qualify for the STEM OPT extension, a student s degree must be received from an educational institution accredited by an accrediting agency recognized by the Department of Education. Designated school officials (DSOs) may only certify STEM degrees that appear on the STEM Designated Degree Program list at the time of the student s application and that were earned at accredited schools. DHS will publish the degree list in the Federal Register. The term science, technology, engineering or mathematics field means a field included in the Department of Education s Classification of Instructional Programs taxonomy within the summary groups containing mathematics, natural sciences (including physical sciences and 1

2 biological/agricultural sciences), engineering/engineering technologies, and computer/information sciences, and related fields. Site Visits by Immigration and Customs Enforcement (ICE) ICE may conduct on-site reviews to ensure that employers meet program requirements, and USCIS and ICE may request access to the required Mentoring Training Plan and student evaluations. DHS estimates that an employer site visit may include review of records and questions for the supervisor. Mentoring and Training Plan Employers must prepare a formalized Mentoring and Training Plan (Form I-910), signed under penalty of perjury by the student, the employer s representative (at the outset), and the student s supervisor (at six month intervals and at conclusion). The student must submit the completed Mentoring and Training Plan to the DSO, who is required to review it prior to issuing a recommendation for STEM OPT. The Mentoring and Training Plan must explain how the employment will provide a work-based learning opportunity for the student and: - Describe the student s role in the program and the program s direct relationship to the student s qualifying STEM degree. - Describe the specific goals and objectives for the program, as well as a detailed explanation as to the means by which these goals will be achieved. - List the supervisor s qualifications to provide this supervision or training, how often and in what capacity he or she will directly supervise or train the student, and list the names and titles of those who, in addition to the supervisor, will provide supervision or training. - Detail the knowledge, skills, or techniques to be imparted to the student. - Explain how the employer will measure the student s new knowledge, skills, and techniques. If a student initiates a new practical training opportunity with a new employer during his or her 24- month OPT extension, the student must submit a new Mentoring and Training Plan to the DSO within 10 days and obtain a new DSO recommendation. The student must report to the DSO a change of legal name, residential or mailing address, employer name, employer address, and/or loss of employment. The student must report the change within 10 days. Ongoing Evaluations and Reporting 2

3 Students must update the Mentoring and Training Plan every six months and provide selfassessments of their performance, including accomplishments, projects, and contributions during the review period. The student s immediate supervisor must sign the self-assessment section of the form. Each six month evaluation, along with the final evaluation report, must be submitted by the student to the DSO within 10 business days of the reporting date. Employer Layoff Attestation The employer must attest on the Mentoring and Training Plan that the employer will not terminate, lay off, or furlough any full-time or part-time temporary or permanent U.S. worker as a result of the practical training opportunity. Employer Wage Obligations The employer must report the student s compensation on the Mentoring and Training Plan. The student must report any adjustments to compensation to the DSO within 10 days of the change. The employer must attest that it will provide the student working on STEM OPT with terms and conditions of employment including duties, hours, and compensation that are commensurate with those provided to the employer s similarly situated U.S. workers. The employer must attest that it will fulfill this requirement under penalty of perjury. - Similarly situated U.S. workers include U.S. workers performing similar duties subject to similar supervision and with similar educational backgrounds, industry expertise, employment experience, levels of responsibility, and skill sets as the STEM OPT student. - The duties, hours, and compensation of STEM OPT students are commensurate with those offered to U.S. workers employed by the employer in the same area of employment when the employer can show that the duties, hours, and compensation are consistent with the range of such terms and conditions the employer has offered or would offer to similarly situated U.S. employees. So long as the attestation is made in good faith and to the best of the employer s knowledge, information and belief, employers may rely on private wage surveys or a Department of Labor wage determination for employees in the same occupation in the same area of employment. Compensation includes wages and any other non-employee-benefit remuneration, including housing allotments, stipends, or similar provisions that are typically provided to employed students. The student must engage in compensated practical training for at least 20 hours per week. 3

4 Student Unemployment Students who obtain the 24-month STEM OPT extension are allowed a 60-day period during which they may be unemployed, in addition to the 90 days already permitted during the initial 12-month OPT period, for a total of 150 days. F-1 Students Selected in H-1B Lottery ( Cap-Gap ) F-1 students whose H-1B status will become effective October 1 of the following fiscal year may continue to benefit from cap-gap protection so long as their H-1B petitions were timely filed, their employment start date is October 1 of the following fiscal year, and they have not violated the terms and conditions of their F-1 status. This provision also applies to F-2 dependents. E-Verify Enrollment Employers need to be enrolled and in good standing in USCIS s E-Verify program and must report their E-Verify company identification number and employer identification number (EIN) used for tax purposes on the STEM Mentoring and Training Plan. New Obligations for Educational Institutions The DSO must review the Mentoring and Training Plan before recommending a STEM OPT extension in the student s Student and Exchange Visitor Information System (SEVIS) record. For students applying for the STEM extension based on a prior degree, the educational institution that provided the student s most recent degree must review the Mentoring and Training Plan. The DSO must ensure that the six month and final evaluations have been properly completed and retain copies for a period of three years after completion of the STEM OPT opportunity. The DSO must make the Mentoring and Training Plan available to the Student and Exchange Visitor Program (SEVP) within 30 days of receiving the plan. OPT STEM Application Timeframes A student must apply for an Employment Authorization Document (EAD) prior to the expiration of his or her current OPT status and within 60 days of the DSO s recommendation for STEM OPT. If the student has properly filed the application and requested a DSO recommendation but his or her current EAD expires prior to a decision on the OPT extension, the prior EAD will be automatically extended. BAL Government Affairs October 22,

5 Prerequisites Qualifying STEM degree from accredited university F-1 student currently in initial 12-month Optional Practical Training period Mentoring and Training Plan Student and employer prepare and complete Form I-910 Employer signs attestations regarding layoffs, wages, etc. Application Student submits Form I-910 to Designated School Official (DSO) DSO updates SEVIS records and issues I-20 to student Student applies for EAD from U.S. Citizenship and Immigration Services Ongoing Reporting Student completes self-assessment every six months and at conclusion Supervisor must review and sign off on selfassessments Student submits assessment to DSO with 10 days of filing dates Additional Reporting and Oversight Student must report any changes (e.g., wages, location, new employer) to DSO within 10 days Employer must report termination of employment within 48 hours ICE may conduct unannounced site visits at any time 5