UPDATE: Final Rule on OPT STEM Extensions to be Published on March 11, 2016

UnknownUSCIS has indicated that they are going to be publishing their final rule on OPT STEM extensions (per the court case that was discussed in this blog post) on March 11, 2016.  Below is a summary of the pertinent provisions per the proposed rule.  After the summary there is also a list of the changes made from the initial rule because of public comments.

Summary of Pertinent Provisions

  1. Lengthened STEM OPT Extension Period. The rule increases the OPT extension period for STEM OPT students from the 2008 IFR’s 17 months 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 one additional 24-month STEM OPT extension.

  2. STEM Definition and CIP Categories for STEM OPT Extension. The rule defines which fields of study (more specifically, which Department of Education Classification of Instructional Program (CIP) categories) may serve as the basis for a STEM OPT extension. The rule also 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’s (SEVP’s) website.

  3. Training Plan for STEM OPT Students. To improve the educational benefit of the STEM OPT extension, the rule requires employers to implement formal training programs to augment students’ academic learning through practical experience. This requirement is intended to equip students with a more comprehensive understanding of their selected area of study and broader functionality within that field.

  4. 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, as long as both degrees were received from currently accredited educational institutions. The practical training opportunity must be directly related to the previously obtained STEM degree.

  5. Safeguards for U.S. Workers in Related Fields. To guard against adverse impacts on U.S. workers, the rule requires terms and conditions of a STEM practical training opportunity (including duties, hours, and compensation) to be commensurate with those applicable to similarly situated U.S. workers. As part of completing the Form I-983, Training Plan for STEM OPT Students, an employer must attest that: (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.

  6. School Accreditation, Employer Site Visits, and Employer Reporting. To improve the integrity of the STEM OPT extension, the rule: (1) generally limits eligibility for such extensions to students with degrees from schools accredited by an accrediting agency recognized by the Department of Education; (2) clarifies DHS discretion to conduct employer site visits at worksites to verify whether employers are meeting program requirements, including that they possess and maintain the ability and resources to provide structured and guided work-based learning experiences; and (3) institutes new employer reporting requirements.

  7. Compliance Requirements and Unemployment Limitation. In addition to reinstating the 2008 IFR’s reporting and compliance requirements, 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 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.

Changes From Initial Published Rule

  1. Time of Accreditation. For a STEM OPT extension based on a previously obtained STEM degree, the student must have obtained that degree from an educational institution that is accredited at the time of the student’s application for the extension.  SEVP Certification Required for Prior Degrees. For a STEM OPT extension based on a previously obtained STEM degree, the degree also must have been issued by an educational institution that is SEVP-certified at the time of application for the extension. Overseas campuses of U.S. educational institutions are not eligible for SEVP certification.

  2. Site Visit Notifications. DHS will provide notice to the employer 48 hours before any site visit unless a complaint or other evidence of noncompliance with the STEM OPT extension regulations triggers the visit, in which case DHS may conduct the visit without notice.

  3. Focus on Training. DHS has modified the proposed rule’s Mentoring and Training Plan to increase the focus on training. The information collection instrument for this plan is now titled Form I-983, Training Plan for STEM OPT Students.  Existing Employer Training Programs. This rule streamlines and clarifies the regulatory text and Training Plan for STEM OPT Students to clarify that employers may use existing training programs to satisfy certain regulatory requirements for evaluating the progress of STEM OPT students.

  4. Employer Attestation. The rule revises the employer attestation to require that the employer attest that the student will not replace a full- or part-time, temporary or permanent U.S. worker.

  5. Evaluation of Student Progress. The rule revises the evaluation requirement to require that the student and an appropriate individual in the employer’s organization sign the evaluation on an annual basis, with a mid-point evaluation during the first 12-month interval and a final evaluation completed prior to the conclusion of the STEM OPT extension.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

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