New 24-Month F-1 STEM OPT Extension Rule Now Effective; Employers Required to Implement Training Plan for Eligible F-1 STEM OPT Students

The long-awaited final rule on the F-1 STEM (Science, Technology, Engineering and Math education) Optional Practical Training (OPT) Extension, authorizing a new 24-month STEM extension for qualified foreign students, took effect on May 10, 2016. The final rule titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” was published in the Federal Register on March 11, 2016. The May 10 effective date of the proposed rule also corresponded with the expiration of the stay of the U.S. District Court for the District of Columbia decision which had revoked and invalidated the initial 2008 rule which first introduced and implemented the F-1 STEM OPT Extension for qualified foreign students and employers.

Background on F-1 OPT

Foreign students attending colleges and universities in the United States with F-1 visas may obtain work authorization after graduation from their degree program. This work authorization is called F-1 Optional Practical Training. After receiving an Employment Authorization Card from United States Citizenship and Immigration Services (USCIS), the F-1 student may work for any employer in his or her field of study for 12 months.

In April 2008, the Department of Homeland Security introduced and implemented an interim final rule (no notice and comment period) which extended F-1 OPT for certain students completing a program of study in a STEM field. This extension for F-1 STEM students extended the regular 12-month OPT period for an additional 17 months for a total of 29 months if the F-1 student meets the following requirements:

• F-1 student must apply for the extension during the 12-month regular OPT period.
• F-1 student has completed a degree in a STEM field included in the DHS STEM designated degree program list.
• F-1 student will work for a U.S. employer in a job directly related to the student’s major area of study.
• F-1 student will work for an employer enrolled in the USCIS E-Verify program.
• F-1 student has properly maintained F-1 status.

Under the 2008 rule, the student applied for the extension prior to the expiration of the current 12-month OPT Employment Authorization Card. If the Employment Authorization Card expired prior to the decision from the government on the 17-month extension, the student could keep working and the work authorization end date was automatically extended. As part of this extension process, the Designated School Official (DSO) at the F-1 student’s college or university was required to authorize the 17-month extension and certify the STEM degree. Since 2008, F-1 STEM students and employers, as well as U.S. colleges and universities, have been authorizing and using this rule to allow those students in STEM fields to work — especially in situations when the H-1B cap has been reached and sufficient H-1B work visas are not available.

WashTech Lawsuit and Court Decision

In March 2014, a group of IT workers filed a lawsuit challenging the entire F-1 OPT program. The lawsuit alleged that the DHS had no authority to create the F-1 OPT program. The lawsuit specifically claimed that the 2008 F-1 STEM OPT extension interim final rule should be invalidated due to the agency’s failure to follow required notice and comment procedures. In a decision and order dated August 12, 2015, the U.S. District Court for the District of Columbia concluded that the Department of Homeland Security (DHS) failed to follow the required notice and comment procedures under the Administrative Procedures Act (APA). The Court invalidated and revoked the 2008 rule. However, the Court initially stayed its ruling until February 12, 2016, to allow DHS time to promulgate a new rule through proper notice and comment procedures.

This court ruling caused USCIS to expedite its OPT rulemaking process, resulting in the issuance of a proposed rule on October 19, 2015. DHS received more than 50,000 comments to the proposed rule which led to a longer rule-making process. Due to the voluminous number of comments received and the longer process needed for the government to publish the final rule, the U.S. District Court for the District of Columbia granted an extension of the stay of the vacatur of the 2008 F-1 STEM OPT rule from February 12, 2016, until May 10, 2016.

Additional background information is available in our previous legal updates published October 29, 2015, and January 26, 2016.

New F-1 STEM OPT Extension Rule — Effective May 10, 2016; STEM OPT HUB Website

On March 11, 2016, DHS issued the final rule titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” after reviewing the more than 50,000 comments received after issuing the proposed rule on October 19, 2015. The complete rule is available on the Federal Register: A Rule by the Homeland Security Department on 03/11/2016.

Additionally, since issuing the final rule, DHS has implemented a specific website discussing the changes and implementation of the new rule. This website is called the “STEM OPT HUB.” Information at this website includes STEM OPT information and resources for students, school officials and employers. The government also states that additional information and guidance will be frequently published and updated — and encourages those interested about STEM OPT to check this website — Students and DSOs: The 24-month STEM OPT Extension is Now in Effect — for such new information as it is released following the May 10, 2016, implementation.

In addition to developing this new, helpful website, DHS has also conducted additional outreach with schools, students and employers with specific webinars on the new rules and is also providing updates through Study in the States on social media.

Highlights of the New Rule

E-Verify Required: As in the 2008 rule, the new rule requires that employers eligible under the F-1 STEM OPT program be enrolled in the E-Verify system of USCIS. Employers will need an Employer Identification Number (EIN) under the new rule.

Longer STEM Extension Period – 24 Months: The new rule extends the current STEM extension from 17 months to 24 months. According to DHS, a 24-month program will enhance the academic benefit for the STEM student and that such an expansion would allow for additional research projects, grants, etc. that would benefit from a longer time period. The new rule also allows F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level for one additional 24-month STEM extension. As outlined above, the rule also allows those F-1 students currently taking advantage of a 17-month extension to apply for a further extension to obtain the benefit of the full 24 months.

STEM Definition: The new rule provides a clearer definition regarding the STEM fields of study under the Department of Education’s Classification of Instructional Program (CIP) categories. DHS determined a “STEM field” is a field included in the Department of Education’s CIP taxonomy within the two-digit series containing engineering (CIP code 14), biological sciences (CIP code 26), mathematics (CIP code 27), physical sciences (CIP code 40) or a related field. The current list — STEM Designated Degree Program List Effective May 10, 2016 — is similar to the previous list under the 17-month STEM OPT.

Previously Obtained STEM Degrees: The new rule allows an F-1 student to use a prior eligible STEM degree obtained from a U.S. institution of higher education as a basis to apply for a STEM OPT extension as long as the student’s most recent degree was also received from an accredited educational institution in the U.S. Again, to be eligible for the STEM extension, the employment must be directly related to the STEM degree. DHS indicates that for a previously obtained degree to qualify for a STEM OPT extension, the degree must have been conferred within 10 years preceding the application date.

Unemployment Provisions: The 2008 rule first implemented the specific number of days that an F-1 student could be unemployed without affecting the F-1 maintenance of status. The 2008 rule allowed for 90 days during the initial 12-month period of F-1 OPT and an additional 30 days (for a total of 120 days) if the student received an F-1 STEM OPT extension. Under the new rule, the 90 days during the initial 12-month period of F-1 OPT remains the same. However, the government has increased the allowable days for unemployment for a total of 60 days during the STEM extension. The total amount of unemployment allowed for a STEM student is now 150 days of allowable days in unemployment before affecting the F-1 student’s maintenance of status.

F-1 Cap Gap Remains in Place: The 2008 rule included an F-1 cap-gap provision to allow F-1 students to remain in valid immigration status and with work authorization from the date of expiration on their F-1 OPT Employment Authorization Card up and until an October 1 start date with an H-1B approval and change to H-1B status. Under the F-1 cap-gap provision, if the F-1 student filed an H-1B petition (as of April 1 for the next fiscal year allotment of H-1B cap subject visas) and that H-1B petition was selected in the lottery, receipted and then approved for an October 1 start date, that student could remain employed and in valid immigration status from the time of the expiration of the Employment Authorization Card (between April 1 and September 30) until the automatic change to H-1B status as of October 1. The new rule retains the F-1 cap-gap relief for such affected students and their employers.

Transition Plan

With the changes under the new rule, DHS has developed a transition plan and program for affected F-1 students, including those with pending 17-month STEM OPT Extension Applications and those with existing 17-month STEM OPT extensions. The transition plan covers the following:

• Covers students with pending 17-month STEM OPT extension applications
• Covers students with existing 17-month STEM OPT extensions
• Does NOT cover students with less than 150 days remaining on their 17-month STEM OPT extension EADs as of the date of filing
• Does NOT cover students in their 60-day grace period
• Pending applicants on May 10 – will receive RFE to amend and demonstrate eligibility for 24-month extension
• 17-month STEM OPT EAD issued on or before May 9, 2016: Remains VALID
• No automatic conversion from 17 months to 24 months
• Must timely file seven-month extension on or before August 8, 2016
• Must have 150 calendar days remaining before the end of the 17-month OPT period as of the filing date of Form I-765
• Must meet requirements for 24-month STEM OPT extension, including Form I-983 training plan

More information is available on the Homeland Security website at “Study in the States: Transition Plan Overview.”

Training Plan — Form I-983

Training Plan: Employers are required under the new rule to implement a formal Training Plan for the 24-month period of extension. The training plan needs to be completed, signed and presented to the Designated School Official (DSO) before the DSO can recommend the STEM OPT extension. The Training Plan completed on Form I-983 requires the F-1 student and employer to provide details about the goals of the STEM practical training opportunity, explain how the training is specific to the qualifying STEM degree, specify the compensation, describe the methods of performance evaluation and be signed by the employer and the student.

Completion of Form I-983: Detailed instructions and a tutorial are provided by DHS at the STEM OPT HUB. F-1 students and employers are required to complete the following information on Form I-983:

• Student Role: Form I-983 requires that additional information be provided about the student’s role with the employer and how that role is directly related to enhancing the student’s knowledge obtained through the qualifying STEM degree. This section should be completed with tasks and objectives of the training, the span of time involved with the training and should include specific goals and objectives of the training.
• Goals and Objectives: This part of Form I-983 requires the employer to outline assignments that will help the F-1 STEM OPT student in achieving specific objectives of the training related to the STEM degree. This section should also include specific skills, knowledge and techniques that the student will learn or apply and how the student will achieve the goals for the training and as outlined in the training curriculum and timeline.
• Employer Oversight: Form I-983 requires how the employer provides oversight and supervision of the F-1 STEM OPT student. If the employer has such a training program or related policy in place, such a program or policy can be used and outlined in this section of Form I-983. Specific oversight and supervision needs to be outlined in this section of the form.
• Measures and Assessments: The employer must outline on Form I-983 how the employee will measure and assess the F-1 STEM OPT student and outline how the student is acquiring new knowledge and skills. If the employer has a training program or related policy in place that covers measures and assessments, such a program or policy can be used and outlined in this section of Form I-983.
• Additional Remarks: An optional section is also included if the employer wishes to include any supplemental information for the Training Plan not already included in the above sections.

Form I-983 also requires completion of the evaluation on student progress. The student submits the first assessment on Form I-983 within 12 months of the STEM OPT start date. This is signed by the both the student and the employer official. A second, final assessment is also completed to outline the training and knowledge acquired during the entire 24-month training period. This is also signed by the student and the employer official.

More information on the training plan is available on the Homeland Security website at “Study in the States: Form I-983 Overview.”

Additional Considerations for Employers in New Rule

Employer Attestations: The new rule requires employers to certify to several requirements, including:

• Ensuring the supervising official follows the Form I-983 Training Plan.
• Notification to the Designated School Official (DSO) of any material changes to the plan, including but not limited to, any change of EIN resulting from a corporate restructuring, any reduction in compensation from the amount previously reported on the Training Plan that is not tied to a reduction in hours worked, any significant decrease in hours per week that a student engages in a STEM training opportunity, and any decrease in hours below the 20 hours per week minimum required under this rule.
• Notification to the Designated School Official (DSO) of any termination or departure of the F-1 STEM OPT student within five business days of such termination or departure.
• The student’s practical training opportunity is directly related to the STEM degree that qualifies the student for the STEM OPT extension and the position offered to the student achieves the objectives of his or her participation in the training program.
• The student will receive on-site supervision and training, consistent with the training plan and with experienced and knowledgeable staff.
• The employer has sufficient resources and personnel to provide the specific training program outlined in the training plan and will implement the program at the location included in the training plan.
• The student on a STEM OPT extension will not replace a full-or part-time, temporary or permanent U.S. worker. The terms and conditions of the STEM practical training opportunity — including duties, hours and compensation — are commensurate to the terms and conditions of other similarly situated U.S. workers.
• The training conducted under the Training Plan complies with all applicable federal and state employment law requirements.

Employer Site Visits: The new rule authorizes DHS to conduct employer site visits to ensure compliance with the rules and program requirements. In most cases, DHS will provide 48 hours of notice to employers before a site visit. However, if a complaint or other evidence of noncompliance with the STEM OPT extension regulations is the reason for the site visit, DHS may conduct the visit without warning. DHS may also request information from you to determine the need for a site visit.

Compliance and Reporting Requirements: As with the 2008 rule, compliance and reporting will be required as part of the F-1 STEM OPT program. The new rule requires F-1 STEM OPT students to report to DHS any changes in names or addresses, as well as any changes to the employers’ names or addresses.

Conclusion / Upcoming Hot Topics Webinar

Schools, students and employers must now follow the new F-1 STEM OPT requirements as of the May 10, 2016 effective date. Employers have many more duties and responsibilities than ever before when hiring an F-1 STEM OPT student. Not only do employers need to comply with E-Verify as under the prior 2008 rule, employers are now required to comply with a specific training plan and adhere to the above attestations when hiring or continuing to employ the F-1 STEM OPT student under the 24-month extension as outlined in the new rule.

Please join us for a webinar this week on May 18, 2016, when we will discuss the specifics of the new F-1 STEM OPT rule, as well as additional hot topics in U.S. business immigration. To register, visit “Hot Topics in U.S. Business Immigration — May 2016 Edition.”