5 Reasons Not To Celebrate on the New STEM OPT Rule – Effective May 10 2016

The new long awaited Optional Practical Training (OPT ) rule allowing an extension of 24 months for STEM student is out and will be effective as from May 10 2016 when STEM students will be eligible to apply. While the rule is a relief for many, it can actually be also be a ‘headache’ for others. We have tried to explain the new rule of STEM OPT on this video

Below are few points that need to be noted regarding the new STEM OPT:

1. The emphasis on Training and Monitoring.

“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”

 

While the actual goal on OPT is training, it puts an undue burden on employers to report this training in detail on the form I-983. This means employers who are not familiar with the immigration system, might have to hire a person who is dedicated to this part and also a lawyer to fill the form according. Of course, our law firm will be glad to help on this matter, yet the employer would have to keep a record at all time on the STEM OPT student.

2. Make sure of the Accreditation of the School

“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.”

This means that schools which were in the accreditation process or school which does not meet the accreditation standards as decided by the DHS will not be appropriate for students who want to enjoy the new 24 months STEM OPT program. Many students who would therefore be under the impression they are eligible for the OPT STEM program might not actually qualify.

3. 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.”

In the business world, hiring and firing is something common. Yet if the employer is terminating regular permanent US workers with the intent of replacing them with employees who are on STEM OPT, the employer will be liable. This might actually result in abuses where employees who have a bona fide termination. For example a disgruntle employee can easily make a complaint that he or she was terminated to be replaced by an OPT candidate.

4. Chilling Effect of Site Visits

“DHS will provide notice to the employer 48 hours before any site visit unless 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.”

Just like under the H1B employers dealing with STEM OPT students will be subject to site visits. The biggest issue is that although, they will advise people for 48 hrs before the site visit. Yet it is quite inconvenient if the DHS decide to do a suddenly poke into any employer’s business for a site check!

5. The Burden of Student Reporting and Employer need to follow up the progress.

Students were already forced to report to their DSO prior to this rule, the rule makes it more stringent on the employer through an evaluation of the progress. Many employers might not find it costly to be able to maintain such a record. Since “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.”

The above are but few issues that the new OPT STEM candidates and their employers will face. However, although the rules seem to be strict, it is meant to safeguard the rights of US employees. As such compliance with the rule not is not only mandatory but will also hopefully put an end to the notion that OPT students are actually taking the jobs of regular employees.