International students who wish to come to the United States to study at a US college or university are issued an F-1 visa. Following the completion of their academic programme in the United States, these F-1 students are often issued optional practical training (OPT). The purpose of OPT is to allow F-1 students to supplement their academic knowledge with valuable work experience after earning their US degree.

Final rule

The Department of Homeland Security (DHS) has issued a final rule on OPT for F-1 students with degrees in the sciences, technology, engineering and mathematics (STEM). The final rule will take effect on May 10 2016 and extends the period for which an F-1 student may pursue OPT in the United States after completing his or her degree in a STEM field. The final rule can be summarised as follows:

  • 17-month OPT extension period replaced with a new 24-month OPT extension period for F-1 students with STEM degrees – F-1 students have an initial 12-month OPT period after completing their degree programme. Students with US STEM degrees have this 12-month period, plus an additional 24 months of OPT under the final rule.
  • E-Verify – the final rule affirms that a student is eligible for a 24-month STEM OPT extension only if the employer for which the student will be working on STEM OPT is an E-Verify employer.
  • Cap gap relief – the new rule affirms that the previous cap gap relief continues to be available for those F-1 students that file H-1B cap petitions before their F-1 OPT expires (this rule applies to all students whether on non-STEM OPT or STEM OPT).
  • Two STEM extension periods – the new rule indicates that a student may be eligible for up to two separate STEM OPT extensions over the course of his or her academic career in the United States on completing two qualifying STEM degrees at different educational levels.
  • Formal training plan – each STEM OPT student must prepare and execute with their prospective employer a formal training plan that identifies learning objectives. The STEM OPT student and E-Verify employer will need to work together to finalise the plan.
  • School must be accredited – the new rule affirms that the STEM OPT must be from an accredited school in order to be eligible.
  • Increase in number of days of permissible unemployment – this allows a STEM OPT student a period of up to 150 days of unemployment.
  • DHS site visits – the new rule indicates that the DHS will be responsible for conducting site visits of employers that employ STEM OPT students, and notice will be given by the DHS of the site visit. However, unannounced site visits may occur if the site visit is triggered by a complaint or other evidence of non-compliance.
  • Reporting requirements – the new rule imposes four reporting requirements. The reporting will be at:
    • six months (the student and the designated school official work together to confirm the student's residence, lawful status and employment);
    • one year (the student reports to the designated school official on the progress of his or her training);
    • changes (departure of student or termination of employment must be reported); and
    • deviations (changes in training plan must be reported).
  • Specific employer obligations and/or attestations to safeguard integrity of STEM OPT programme:
    • the employer must be in good standing with the E-Verify programme;
    • the employer will assist with reporting and training plan requirements;
    • the employer attests it has sufficient resources and trained personnel available to provide appropriate training;
    • the employer attests the STEM OPT student will not replace a full-time or part-time temporary or permanent US worker; and
    • the employer attests that the training opportunity will help the student attain his or her training objectives.

Comment

The comments to the final rule note that as of September 16 2015, over 34,000 students in the United States were on STEM OPT, compared to more than 1.2 million international students studying in the United States. The comments to the final rule also note that the 34,000 F-1 students currently on STEM OPT represent less than 0.05% of the US STEM job market.

While the final rule will impose some burden on employers and universities with respect to reporting requirements and developing formal training programmes, it will help the United States retain foreign nationals who have pursued STEM degrees at US academic institutions.

For further information on this topic please contact Matthew Morse at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (matt@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

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