Background

On March 10, 2016 the Department of Homeland Security (“DHS”) published the long-anticipated final STEM Optional Practical Training (“OPT”) rule, which will take effect on May 10, 2016. 

The STEM OPT program previously allowed F-1 student university graduates who completed a degree in a STEM field (Science, Technology, Engineering, or Mathematics) to receive an additional 17-month period of work authorization beyond the initial 12 months of OPT that they received upon completion of their academic program.  The new rule will increase the STEM OPT work authorization period from 17 months to 24 months.   Certain students who are currently working under a 17-month grant of STEM OPT may apply for an additional seven (7) month extension.  However, the rule also imposes additional requirements on U.S. employers. 

For a thorough analysis of the proposed rule, please refer to our previous client alert on the subject.

This Management Alert provides E-Verify employers with guidance on how best to identify employees who will benefit from this rule, as well as recommendations for understanding, tracking and complying with program deadlines.

Employers should identify current employees who will benefit from a STEM OPT extension.

Employers should determine which members of their existing workforce may benefit from an extension of F-1 Student OPT work authorization by identifying which employees are currently working pursuant to initial OPT or STEM OPT work authorization.  There are a few potential options to identify this employee population:

  • Employers that use a third-party I-9 software system should investigate if the system can identify OPT workers. 
  • Employers that retain I-9 documentation can determine which employees have temporary work authorization which will expire, and then can review copies of I-9 supporting documentation to determine which employees hold OPT work authorization. 
  • Employers otherwise can send a communication to their employee population to ask which employees hold OPT work authorization.

Employers should develop a system to identify F-1 initial OPT or STEM OPT workers at the time of hire.

On a going-forward basis, employers should establish a system to identify new hires who benefit from an initial period of F-1 OPT work authorization, or who hold  STEM OPT work authorization.

Filing deadlines for current employees working under a 17-month grant of STEM OPT

Employers should identify and evaluate current employees holding STEM OPT work authorization for seven-month extension eligibility, and be aware of the following eligibility requirements:

  • Employees with STEM OPT work authorization valid on or after October 7, 2016 are eligible to file for an extension.
  • The seven-month STEM OPT extension application must be filed with USCIS between May 10 and  August 8, 2016.
  • At the time of filing, the employee’s current 17-month STEM OPT work authorization must remain valid for at least 150 days.

Employers should also begin to identify and track current employees holding an initial, 12-month OPT work authorization, who are, because of their academic degree, eligible to file for a STEM OPT extension. These employees must file a 24-month OPT STEM extension application to USCIS prior to the expiration of their current OPT work authorization.

Filing deadlines for new hires

  • For new hires who have already been granted STEM OPT work authorization, the employer and employee must complete a Form I-983 Training Plan, and the employee must then present the completed Training Plan to the Designated School Official (“DSO”) at their university within 10 business days of starting with their new employer
  • New hires within their initial OPT work authorization period, who are eligible to file for a STEM OPT because they have a degree in a STEM field, must file the extension to USCIS prior to the expiration of their current OPT work authorization.

Form I-983 Training Plan for STEM OPT Students

Employers will be required to complete formal Training Plans for F-1 students applying for STEM OPT benefits.  These F-1 students will be required to provide evidence of a Training Plan to the DSO at their University, who will recommend STEM OPT for the student.   The STEM OPT employer must complete and review the plan, which contains a number of attestations and requests details about their training opportunity, the goals of OPT employment, the employer’s method of overseeing the employee’s work, and measurement of objectives.  The employer must demonstrate that the training opportunity is directly related to the STEM degree, and that the offered position will achieve the objectives of the training plan.

Ongoing employer and employee obligations

STEM OPT employees are required to complete validations and self-assessments at regular six-month intervals: 6, 12, and 18 months following the start date of the Training Plan, and at the conclusion of the Training Plan.  Employers are also obligated to notify the DSO within five business days after the employee terminates employment.