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“#STEMOPT Rule to be Published March 11 and Effective May 10”

By Peter F. Asaad

The U.S. Department of Homeland Security (DHS) will publish a final rule Friday, March 11, 2016, amend current F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in STEM from U.S. institutions of higher education.

DHS has released an advanced copy of the final rule.

The new rule will go into effect Tuesday, May 10, 2016.  DHS notes that a 17-month STEM OPT work permit issued before May 10 will remain valid until it expires, and that beginning on May 10, certain students will have a chance to apply for an additional seven months of OPT.

As a result of this final rule:

  • Beginning May 10th, certain international students earning STEM degrees from accredited U.S. universities can stay in the United States for an additional 24 months post-graduation to participate in on-the-job training within the STEM field. The new rule requires international students and employers to develop individualized training plans that enhance students’ educational experience with practical training. (All international students remain eligible for an initial 12 months of OPT, regardless of degree field.)
  • Ultimately, the final rule lengthens STEM OPT from 17 months to 24 months, allows for two lifetime STEM OPT extensions instead of one, and provides eligibility for non-STEM graduates (e.g., MBAs) to participate in STEM OPT based on a prior STEM degree obtained in the past 10 years at an accredited college or university.
  • DHS estimates that about 34,000 individuals are participating in this program at present, and that the total number of affected students will expand in the coming years.

The OPT program allows F-1 students to temporarily work in the U.S., but certain STEM students are currently only able to extend their OPT period by 17 months. This regulation will therefore boost the available work authorization period for some foreign students by seven months.  Having already published the Notice of Proposed Rulemaking (NPRM) and allowed for time for Notice and Comment, the publication date for the Final Rule in the Federal Register is scheduled for Friday, March 11, 2016, with the looming closely-watched deadline of May 10 set by a federal district judge who has determined that the prior rule must be vacated for procedural nonconformity with the Administrative Procedure Act (APA).

chart summarizing the new H-1B regulation from the NPRM is available here.

A summary of changes found in the Final Rule after consideration of public comments received, include the following:

  • Time of Accreditation. For a STEM OPT extension based on a previously obtained STEM degree, the student must have obtained that degree from an educational institution that is accredited at the time of the student’s application for the extension.
  • SEVP Certification Required for Prior Degrees. For a STEM OPT extension based on a previously obtained STEM degree, the degree also must have been issued by an educational institution that is SEVP-certified at the time of application for the extension. Overseas campuses of U.S. educational institutions are not eligible for SEVP certification.
  • Site Visit Notifications. DHS will provide notice to the employer 48 hours before any site visit unless a complaint or other evidence of noncompliance with the STEM OPT extension regulations triggers the visit, in which case DHS may conduct the visit without notice.
  • Focus on Training. DHS has modified the proposed rule’s Mentoring and Training Plan to increase the focus on training. The information collection instrument for this plan is now titled Form I-983, Training Plan for STEM OPT Students.
  • Existing Employer Training Programs. This rule streamlines and clarifies the regulatory text and Training Plan for STEM OPT Students to clarify that employers may use existing training programs to satisfy certain regulatory requirements for evaluating the progress of STEM OPT students.
  • Employer Attestation. The rule revises the employer attestation to require that the employer attest that the student will not replace a full- or part-time, temporary or permanent U.S. worker.
  • Evaluation of Student Progress. The rule revises the evaluation requirement to require that the student and an appropriate individual in the employer’s organization sign the evaluation on an annual basis, with a mid-point evaluation during the first 12-month interval and a final evaluation completed prior to the conclusion of the STEM OPT extension.