Immigration Alert: New regulations affecting “STEM OPT” employment

On May 10, 2016, new immigration regulations went into effect with respect to foreign national students working in the US.  Specifically, the regulations expand opportunities for the extension of post-completion work authorization (optional practical training, or “OPT”) for students who complete a STEM (Science, Technology, Engineering or Mathematics) degree.  These opportunities will require additional reporting requirements and other responsibilities for employers and the F-1 student employees prior to, during and following STEM OPT employment.

Background
As you may know, foreign national students in the United States are allowed to engage in temporary OPT employment directly related to their major area of study following completion of their degree program from an accredited U.S. university for an initial period of 12 months.  The OPT must first be approved by the student’s college/university’s Designated School Official (“DSO”) on a Form I-20, and then the student must apply for and receive an Employment Authorization Document (“EAD”) from United States Citizenship and Immigration Services (“USCIS”) to work in the U.S. with approved OPT.

Previously, students who graduate with a qualifying STEM degree and are working in a STEM-related position can apply for a 17-month extension of their approved OPT. The employer must be registered with e-Verify to employ a student with approved STEM OPT. The STEM OPT extension must also be approved by the student’s DSO on a Form I-20, and then the student must apply for and receive a new EAD to continue working during the STEM OPT extension period.

New STEM OPT Regulations
Under the new regulations, F-1 students with STEM degrees may apply for a 24-month extension of their OPT, replacing the previously available 17-month extension. Moreover, applicable students may be eligible for two periods of STEM OPT if s/he has two U.S. STEM degrees (i.e. a Bachelor’s and Master’s). The list of qualifying degrees has also been expanded. (Please click here for the official list: https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf).

Along with these and other benefits, the new regulations require heightened reporting requirements and other responsibilities, which include the following: 

1. F-1 students and employers must work together to complete a Form I-983, Training Plan for STEM OPT Students, before obtaining DSO approval of STEM OPT extension. In order to complete the Form I-983, the employer and F-1 student employee must be able to clearly articulate: the employee’s role during his/her employment; how the role directly relates to the F-1 student employee’s field of study; the goals and objectives of the STEM OPT employment (bearing in mind that OPT should in fact be training); and how the employer will oversee the STEM OPT employment. Form I-983 can be found at https://www.ice.gov/sites/default/files/documents/Document/2016/I- 983.pdf.
   
   
2. Students must submit annual self-evaluations (template included on Form I-983) to their DSOs to track the progress of their STEM OPT employment.
   
   
3. Employers must report to DSO every 6 months to validate the STEM OPT employment; notify the relevant DSO if the student resigns or is terminated; report material changes in the approved STEM OPT employment; and provide proof that this employment did not come at the expense of a U.S. worker, as well as evidence that STEM OPT employees are provided opportunities that are commensurate with those of similarly situated U.S. employees.

Recommendations
To aid your compliance with these regulations, we recommend that employers of F-1 students with approved STEM OPT designate a person or department within the company who will be responsible for monitoring the student, liaising with and reporting to DSOs, signing training plans, scheduling evaluations of students, documenting “commensurate wage,” and reporting material changes, and determining whether a change is material.

Likewise, it is advisable to maintain a compliance file with the F-1 student employee records at the worksite in the event of a USCIS site visit. The file should contain all information necessary to comply with the new STEM OPT regulations, including copies of signed training plans, wage documentation, evidence of recruitment for the position, copies of evaluations, copies of DSO communications, etc. 


Our immigration team is happy to assist with any questions you may have regarding the new regulations and completion of the Training Plan.  Please do hesitate to contact us by email ([email protected] and [email protected]) or phone (781-253-7150) with any specific questions or concerns.

*For more detailed information about the new STEM OPT regulations and how they may affect your company and your F-1 student employees, please visit and bookmark: https://studyinthestates.dhs.gov/stem-opt-hub