New STEM OPT Rule

On March 11, 2016, DHS published the final rule on STEM OPT extension. This rule replaces the interim 2008 STEM OPT rule. This new rule will go into effect on May 10, 2016.

OPT, or Optional Practical Training, is a form of temporary employment authorization available to F-1 students that directly relates to the student’s major area of study in the United States. STEM OPT extension is an extension of employment authorization beyond the traditional 12-month for qualifying students with degrees in Science, Technology, Engineering, and Math (STEM).

The biggest buzz of the final rule is that it lengthens the STEM OPT extension from 17 months to 24 months. It also contains the following noteworthy provisions:

Eligible students are ones that earned a degree from a school that is accredited by the Department of Education-recognized accrediting agency and certified by SEVP.
A student may be eligible for up to two separate STEM OPT extensions. A second STEM OPT extension is available to students who receive an additional qualifying degree.
Students can use a previously-earned qualifying degree to apply for a STEM OPT extension.
STEM OPT employers are required to prepare and execute a formal training plan that identifies the learning objectives and plan for achieving those objectives.
Students must not replace a full-time, part-time, temporary or permanent U.S. worker.
Students must work 20 hours per week per employer as a minimum.
STEM OPT employers must be enrolled in and remain in good standing with E-Verify program.

The new rule also puts in place several obligations on the STEM OPT employers. The final rule continues the requirement that the employer be enrolled in the E-Verify program. The employer is required to implement a formal training program for the students. The employer is also bound to reporting requirement in the event of changes in employment status, as well as, material changes or deviations from the training program. In addition, the employer must attest to three things: (a) that it has sufficient resources and trained personnel available to provide appropriate training, (b) that student will not replace a full-time or part-time, temporary or permanent U.S. worker, and (c) that the opportunity helps student attain his/her training objectives.

The new rule also contains a number of reporting requirements. First is the requirement for student and school official to validate the student’s biographical, residential, and employment information within 6 months. Second, the employer is required to sign an annual self-evaluation and student must report his/her progress with the training to the designated school official. Third, student and employer are required to report changes in the employment status. And fourth, student and employer must report material changes or deviations from the formal training plan to the designated school official.

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