DHS to Issue Final Rule Allowing STEM and Cap-Gap OPT Extensions

The Department of Homeland Security (DHS) released an advance copy of a final rule that will preserve F-1 students’ ability to file “STEM” and “Cap-Gap” OPT (Optional Practical Training) extensions. The final rule remedies the procedural deficiencies found by the Federal Court in the Washtech vs. DHS decision, which invalidated DHS’ earlier interim final rule that created the STEM and Cap-Gap extensions in 2008. The final rule will also provide new “enhanced” benefits for students with STEM degrees (science, technology, engineering or mathematics), including an extended 24-month extension validity period, and extension eligibility for students with prior STEM degrees. In addition to these benefits, the rule will impose new reporting and attestation requirements on employers seeking to employ workers pursuant to STEM OPT extensions. According to DHS, these restrictions are designed to preserve the integrity of the OPT program and protect U.S. workers.

Effective Date

The final rule will be published in the Federal Register tomorrow on Friday, March 11, 2016, and go into effect 60 days later, on May 10, 2016 – one day before the Washtech decision invalidating the earlier STEM OPT rule would otherwise take effect. Eligible students may continue to apply for STEM OPT extensions prior to the effective date.

Summary of Key Changes

A summary of the key changes to the STEM OPT extension provisions are provided below. The final rule does not make substantive changes to the provisions relating to initial OPT work authorization, or OPT cap-gap extensions.

  • Lengthened STEM OPT Extension Period. The rule increases the OPT extension period for STEM graduates from 17 to 24 months. The final rule also makes F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level eligible for an additional 24-month STEM OPT extension.

  • STEM Definition for STEM OPT Extension. The rule defines which fields of study may serve as the basis for a STEM OPT extension, and sets forth a process for public notification in the Federal Register when DHS updates the list of eligible STEM fields on the Student and Exchange Visitor Program (SEVP) website.

  • Training Plan for STEM OPT Students. The final rule requires employers to implement a formal training program for students wishing to obtain OPT STEM extensions. This requirement, according to DHS, is intended to equip students with a more comprehensive understanding of their selected area of study and broader functionality within that field. The training program must be described using the new I-983 “Training Plan for STEM OPT students” form, which must be signed by the student and an authorized signatory of the employer, and submitted to Designated School Official (DSO) in order for a STEM OPT extension to be granted. The plan must identify goals for the training, including specific knowledge, skills, or techniques that will be imparted to the student, and explain how those goals will be achieved through the work-based learning opportunity with the employer. The plan must also describe a performance evaluation process, and describe methods of oversight and supervision. Additionally, the plan must demonstrate how the training is related to the student’s STEM field.

  • Previously Obtained STEM Degrees. The rule permits an F-1 student participating in a 12-month period of post-completion OPT based on a non-STEM degree to use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, so long as both degrees were received from accredited educational institutions, and the practical training opportunity is directly related to the previously obtained STEM degree. For example, an F-1 student who graduates with a Bachelor’s degree in Computer Science from a U.S. institution, and who subsequently graduates with an MBA from a U.S. institution, will be eligible for a STEM OPT extension to receive training as a Software Developer based on the student’s underlying Bachelor’s degree in a STEM field.

  • Employer Attestations and Safeguards for U.S. Workers. The final rule requires employers to offer F-1 students who are employed pursuant to STEM OPT extensions working conditions and terms (including duties, hours, and compensation) commensurate with similarly situated U.S. workers. In completing the form I-983 Training Plan, the employer will be required to attest: (1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives.

  • Employer Reporting Requirements. The employer must agree to report the termination or departure of an employee working pursuant to a STEM OPT extension within 5 days of the employee leaving. The employer agrees to comply with this requirement by signing the form I-983 training program required for STEM OPT extension applications.

  • Employer Site Visits. In an effort to improve the integrity of the STEM OPT extension, the rule clarifies DHS’ discretion to conduct employer visits at worksites. In conducting the site visits, DHS will verify whether employers are meeting program requirements, including the ability and resources to provide structured and guided work-based learning experiences.

  • School Accreditation. The rule generally limits eligibility for STEM OPT extensions to students with degrees from schools accredited by an accrediting agency recognized by the Department of Education.

  • Compliance Requirements and Unemployment Limitation. The rule revises the number of days an F-1 student may remain unemployed during the practical training period. The program in effect before this final rule allowed a student to be unemployed for up to 90 days during his or her initial period of post-completion OPT, and up to an additional 30 days (for a total of 120 days) for a student who received a 17-month STEM OPT extension. This rule retains the 90-day maximum period of unemployment during the initial period of post-completion OPT but allows an additional 60 days (for a total of 150 days) for a student who obtains a 24-month STEM OPT extension.

Impact on Employers

The new rule released today is welcome news to companies that employ foreign workers pursuant to OPT STEM extensions. The rule will prevent the Washtech decision from coming into effect, and extend the STEM OPT extension period by 7 months. However, as summarized above, the rule also imposes several new reporting and attestation requirements that will increase the compliance burden for employers. We will be inviting our clients to attend a free training to explain the new requirements next week.

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