On March 11, 2016, the Department of Homeland Security issued a new and final rule: Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.
WHAT IS OPT?
Students who are in the United States on an F visa have the option of working within the United States by performing practical training employment, either during their academic program or upon completion of their program. The two categories of practical training employment are CPT, Curricular Practical Training, and OPT, Optional Practical Training. Either CPT or OPT is available to students who have completed at least one full-time academic year of study, which is typically 8-9 consecutive months of study (unless they are a graduate student in a special program). Under OPT or CPT, the employment must be related to the student’s course of study and pursued for practical training, not for English language training.
OPT, or optional practical training, may be pursued either before or after completion of the student’s academic program. OPT may be performed before completion of the academic program either during the student’s vacation or while school is not in session, or while school is in session so long as the student does not work more than 20 hours a week. OPT may be performed after completion of the student’s program either after completion of all course requirements (excluding thesis requirements) for a bachelor’s, master’s or doctoral degree, or after completing their entire course of study. The student cannot, however, combine pre- and post-completion OPT.
The newly issued final rule amends the F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Under the newly enacted final rule, F-1 STEM students who have elected to pursue 12 months of OPT in the United States may extend the OPT period by 24 months (STEM OPT extension). Previously, if the student’s degree for a period of post completion OPT was in a STEM program, it was possible to obtain a 17-month extension of OPT. For this extension, the prospective employer had to use the E-Verify program if the student had not already received a 17 month extension of their OPT.
Now, under the final rule, the 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students.
Further, the rule imposes requirements for formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. As with the prior 17-month STEM OPT extension, the rule authorizes STEM OPT extensions only for students employed by employers who participate in E-Verify. The rule also includes the “Cap-Gap” relief first introduced in a 2008 DHS regulation for any F-1 student with a timely filed H-1B petition and request for change of status.
EMPLOYERS OF STEM OPTs:
In addition to allowing certain STEM OPT workers to extend their OPT to 24 months, the newly enacted final rule also effects the employers of such workers. Under the final rule the following requirements are now imposed on employers:
This final rule retains the requirement that all employers training STEM OPT students to participate in E-Verify, which has been required since 2008. E-Verify electronically compares information contained Form I-9, Employment Eligibility Verification, with records contained in government databases to help employers confirm the identity and employment eligibility of newly-hired employees. DHS includes this requirement because E-Verify is a well-established and important measure that complements other oversight elements in the rule, and because it represents an efficient means for employers to determine the employment eligibility of new hires, including students who have received STEM OPT extensions.
Although the E-Verify requirement is the same, it has been modified so that employers are no longer required to insert an E-Verify company identification number (E-Verify ID number).
Additionally, the rule requires the student and employer to complete Form I-983, Training Plan for STEM OPT Students. Contained in the Training Plan are terms and conditions for employer participation aimed at providing protection at U.S. workers. The Training Plan requires employers to attest, that is swear, to the following:
- the employer has sufficient resources and personnel available to provide appropriate training in connection with the specified opportunity;
- the STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker; and
- the opportunity assists the student in attaining his or her training goals.
Finally, consistent with the proposed rule, the final rule requires that the terms and conditions of an employer’s STEM practical training opportunity—including duties, hours and compensation—be commensurate with those provided to the employer’s similarly situated U.S. workers.
HOW CAN WE HELP?
As you can see from the above, the new final rule imposes strict and complex requirements on STEM OPT employers. While it is always important to consult an experienced attorney when employing foreign workers, this is especially true now for employers. We can help navigate the complex requirements for lawful employment of STEM OPT workers and help ensure that all requirements under the new final rule are satisfied.