In this short series on the new STEM OPT rules, Susan Cohen, Chair of Mintz Levin’s Immigration Section will examine the top takeaways for students and their employers. The third post will focus on the eligibility and requirements for employers.

FEIN and E-Verify

In order to employ an F-1 student for the duration of his or her 24-month STEM OPT extension, employers must have a Federal Employer Identification Number (FEIN) and be enrolled in E-Verify.

Completing and Adhering to a Training Plan: Form I-983

Employers must work with F-1 students seeking STEM OPT extensions to complete form I-983 “Mentoring and Training Plan”. In form I-983 the employer must make attestations about the following:

  1. The student’s compensation”;
  2. The manner in which the training is directly related to the student’s STEM degree;
  3. The specific goals of the practical training opportunity;
  4. A description of the methods of oversight and supervision of the student and the nature of the student’s performance evaluations;
  5. That the employer will adhere to the training plan;
  6. The terms and conditions of the student’s STEM OPT employment, including promising that the F-1 student’s duties, hours and compensation will be commensurate with the duties, hours and compensation offered by the employer to other similarly situated employees;
  7. That the employer has sufficient resources and personnel available to provide appropriate training as described on form I-983;
  8. That the employment offered by the employer helps the student to reach his or her training goals; and
  9. That by employing the F-1 student, the employer will not replace a full or part-time US worker.

Other Hiring and Reporting Requirements

Within 5 business days (which do not include federal holidays or weekend days) of the termination or departure of an F-1 student in a 24-month STEM OPT extension period, the employer must report this information to the DSO. An employer is deemed to know that an F-1 student has “departed” his or her employment if the F-1 student informs the employer, or this information has come to the employer’s attention, or if the student has not reported to work for 5 consecutive days without the consent of the employer.

An employer may not hire an F-1 student in a 24-month STEM OPT extension period in a volunteer, unpaid position or for less than 20- hours per week.

As described above, employers must treat F-1 students in a 24-month STEM OPT extension period in a manner that is commensurate with the manner in which the employer treats US workers, in terms of wages, hours and working conditions.

Site Visits

Employers may be subject to site visits by U.S. Immigration and Customs Enforcement (ICE). The purpose of the site visit is to ensure that F-1 students and their employers are engaged in work-based learning experiences that are consistent with the information supplied on form I-983.

If DHS has no reason to suspect that an employer is not in compliance with the STEM OPT Extension requirements, it will give the employer at least 48 hours advance notice of the site visit.

However, if DHS suspects the employer is not in compliance with the STEM OPT Extension requirements, it reserves the right to make unannounced site visits.

Following a site visit if DHS determines the employer or student needs to update form I-983, DHS will inform the employer of this requirement in writing. As with the possibility of any other type of DHS site visit, it is critical that employers be prepared in advance for such site visits and that have a plan for dealing with them.