On March 11, 2016, the Department of Homeland Security (DHS) published a new regulation to allow foreign students with degrees in certain science, technology, engineering and math (STEM) fields to work for E-Verify employers in the U.S. for up to 36 months following graduation. DHS published this regulation to replace the agency’s former STEM work authorization extension program, established in 2008, after a successful legal challenge in 2015.
The new STEM extension regulation differs in several respects from the existing program, including an increase in the maximum time of work authorization to 36 months and expanding the types of degrees that qualify. The new regulation also imposes new compliance requirements on employers, including training plans for STEM OPT workers, reporting and compliance requirements, attestations regarding worker protections and DHS site visits.
On Friday, March 18, 2016, at 1:00 p.m. EDT, 12:00 p.m. CDT, 11:00 a.m. MDT and 10:00 a.m. PDT, Sidley will host a webinar entitled “The New STEM OPT Program: Considerations for Employers.” The webinar will address the following topics:
- Overview of the new STEM OPT benefits for employees
- Application process for employees
- New compliance and reporting burdens for employers
- Recommendations for employer policy and process changes in immigration programs
- Update on the E-Verify program
Click here to register for this webinar.
Changes to the STEM OPT Program
Generally, the program for Optional Practical Training (OPT) allows F-1 foreign students to work for up to 12 months following graduation in a position directly related to their degree field.
The current STEM OPT extension program allows foreign students with STEM degrees who work for employers enrolled in the government’s E-Verify program to extend this period of authorized employment for an additional 17 months.
The new OPT STEM program will provide for an additional seven months of work authorization for STEM graduates working for E-Verify employers. The new program will also include new compliance provisions affecting students, schools and employers.
In developing this new framework, DHS adopted several changes that depart significantly from the current STEM OPT program:
Expanded duration and coverage:
- Increase in maximum time of STEM extension to 24 months: The new rule expands the length of the STEM OPT extension period to 24 months. When combined with the initial grant of 12 months under the standard OPT program, the new STEM extension will enable eligible foreign students to work in the U.S. for up to 36 months following their graduation from a STEM degree program.
- Increase in number of lifetime STEM extensions: Whereas the current STEM OPT program permits one lifetime STEM OPT extension, the new rule will permit eligible students to obtain two separate STEM OPT extensions for qualifying degrees in STEM fields at different education levels. And, unlike the current OPT program, which restricts STEM OPT extensions to practical training programs that directly follow graduation from a STEM degree program, the new rule will permit foreign students who earned a qualifying STEM degree within the past 10 years to apply for an extension of OPT based on that prior qualifying degree. This will be beneficial to students who, for example, earned a U.S. bachelor’s degree in engineering and subsequently earned a Master of Business Administration. Under the new rule, the student will be able to apply for the STEM OPT extension after completion of the MBA.
- Expansion of number of degree fields that qualify for STEM: In addition to increasing the length of the STEM OPT extension period, the rule expands the number of degree fields that qualify students for the extension and establishes a specific process by which DHS can update the list of qualifying degree programs.
Enhanced monitoring and oversight: The new rule couples the benefits of the expansion of the STEM OPT rule with increased employer compliance requirements intended to reduce fraud during the STEM OPT extension period. The new requirements include:
- Limit to accredited institutions: The new rule permits only accredited institutions to authorize students for STEM OPT extensions.
- Training plan: Students and employers will be required to prepare and submit a training plan to the school to obtain the extension and to provide annual performance evaluations.
- Site visits: The rule establishes a new STEM OPT site visit program, under which DHS representatives have the authority to visit employers to verify that they are complying with the STEM OPT program requirements.
Impact on Foreign Students
This new regulation will affect a substantial number of foreign students in the United States. As of September 16, 2015, more than 34,000 students were in the U.S. under a STEM OPT extension. DHS estimates that the changes to the program will increase the number of students eligible for such an extension by five percent. In addition, the agency has identified approximately 17,610 transitional students who will be affected by the expanded 24-month extension period.
Students currently under STEM OPT who wish to apply for the additional seven months of work authorization: Under the new rule, students already working in the U.S. pursuant to a valid, 17-month STEM OPT extension will be eligible to apply for an additional seven months of work authorization, allowing them to take advantage of the full 24-month period authorized under this new rule. However, the new rule will limit this benefit in three important respects:
- Students must have at least 150 days remaining before the expiration of their 17-month STEM OPT employment authorization at the time they file the application to extend the OPT.
- Students must file their applications to obtain the additional seven months of work authorization within 90 days following the publication of the rule, by August 8, 2016.
- Students must satisfy all of the enhanced monitoring and oversight requirements at the time they file the application, including the development of a training plan.
Students currently under STEM OPT who do not apply for the additional seven months of work authorization: Students currently in STEM OPT status who do not qualify for the seven-month extension, or who choose not to apply, will not be subject to the additional requirements of the new regulation and may complete their 17-month extension period subject to the current rules.
Students who have not yet applied for an initial grant of STEM OPT: Students who have not yet graduated or who are currently working pursuant to an initial, 12-month grant of regular OPT should consider whether or not they will qualify for a STEM OPT extension. As described above, the new rule will expand the program to permit students to apply for STEM OPT based on an increased number of qualifying degrees and on STEM degrees earned at a prior degree level.
To apply for a STEM extension based on a prior degree, the student must be in a valid period of OPT and the proposed employment for the STEM extension period must be closely related to the STEM degree field. Students who will apply for a STEM OPT extension after the rule becomes effective on May 11, 2016 will be required to comply with the new processes and procedures instituted by the rule, including the development and submission of a training plan to their schools.
Impact on U.S. Employers
The additional recordkeeping and oversight requirements of the new STEM OPT program will increase the burden on both employers and universities who participate in the program.
Training plan requirement: As part of the application process, students will need to develop and submit a training plan on the new Form I-983, Training Plan for STEM OPT Students, to their school. Employers will be required to confirm the training plan, which needs to describe the connection between the training and imparted skills to the student’s degree field, the performance evaluation process, and the methods of oversight and supervision.
Employer reporting: Employers are required to agree to report the termination or departure of a STEM student to the school within five days of departure.
Worker protections: The program will also require employees to attest that the student will not replace U.S. workers, and that the terms and conditions of the STEM training opportunity are commensurate with those of similarly situated U.S. workers.
Site visits: DHS may conduct site visits to ensure employer compliance with the program. Unless there is evidence of non-compliance, DHS will provide 48 hours notice in advance of the site visit.
Policy considerations: Eligible employers will be able to take advantage of the increased benefits from the expanded STEM OPT program, but will also need to develop new policies and practices to document the adequacy of the training programs, ensure adherence to the special monitoring and reporting requirements for STEM OPT employees, document working conditions and otherwise manage the new compliance requirements of the expanded STEM OPT program.
If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work, or
| Marketa Lindt Partner mlindt@sidley.com +1 312 853 7784 |
Timothy G. Payne Partner tpayne@sidley.com +1 312 853 7445 |
Sidley Immigration Practice
Sidley Employment and Labor Practice
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