Peter F. Asaad, Partner

Publications & Media

“BREAKING: 24 Month STEM Extension, DHS Proposes Rule to Expand OPT Program”

By Peter F. Asaad

As many know and have felt a sense of anxiety over, a federal court has threatened to end STEM OPT extensions if an agency rule is not proposed and made final by February 12, 2016, under the Administrative Procedures Act (APA) Rulemaking Process.  There was a lack of notice and commenting opportunity in the issuance of the 2008 interim rule.  Although the judge gave DHS until February 12, 2016 to have a rule made final, as we have said, it is likely that the February 12, 2016 date is not set in stone; extensions by the court is a likelihood, if needed.  Indeed, the judge here indicates an understanding that many employers and employees depend upon these valuable workers.  To satisfy the court, DHS has been working hard to draft and introduce such a rule.

As a result, DHS has proposed a rule.  Not only has it proposed a rule needed for the court to keep the STEM OPT extension alive for the many employers and employees who depend on it, changes to regulations for foreign students with science, technology, engineering or mathematics (STEM) degrees from U.S. colleges and universities getting practical training experience (OPT) in the United States, DHS has proposed a STEM OPT rule that makes significant changes including expanding the 17 month extension to 24 months.

The proposed rule will be published October 18, 2015.

“The enhancement of this regulation was announced as a part of President Obama’s November Executive Actions,” DHS said today in an announcement.

Extending OPT Time for STEM Students to 24 Months

The proposed rule states that, “[t]he optional practical training program, or OPT, allows nonimmigrant international students and new graduates to extend their time in the U.S. on their F-1 student visa status to gain on-the-job-learning for up to a year. The proposed rule would allow certain F-1 STEM students to extend their OPT period by 24 months with the appropriate mentoring and training by employers. The proposed rule would also improve and increase oversight over OPT STEM extensions.”

Indeed, instead of the current 17 month STEM extension for foreign STEM students, this proposed rule would afford such students a 24 month STEM extension for an aggregate 36 months with the basic 12 month OPT.

The proposal would permit an F-1 student participating in post-completion OPT to use a prior eligible STEM degree 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. Additionally, in order for such a student to be eligible for the STEM OPT extension, the employment opportunity must be directly related to the previously obtained STEM degree.

The proposed rule is aimed at ensuring that F-1 students “gain valuable practical STEM experience through practical training that supplements knowledge gained in their academic studies.”

“Our nation will benefit from keeping international students here, educated in U.S. colleges and universities here while they receive additional training, rather than sending them out of the country,” said Immigration and Customs Enforcement (ICE) Director Sarah R. Saldaña. “At the same time, U.S. employers will benefit from the increased ability to rely on the skills acquired by US educated-STEM students, as well as their knowledge of markets in their home countries.”

DHS said that, “By increasing access to OPT for STEM students, the proposed regulations will help U.S. colleges and universities remain globally competitive in attracting international students in STEM fields. It also reforms the program to better ensure that practical training opportunities are designed to meet student needs, while requiring greater accountability of employers and students.”

Mentoring Requirement

The proposed new rulemaking also seeks to improve and increase the oversight of STEM OPT by requiring implementation of formal mentoring and training plans by employers, and by adding wage and other protections for OPT students and US workers.”

Under this proposed rule, employers have an additional obligation.  It states, as follows: “Mentoring and Training Plan. The proposal would require employers to implement formal mentoring and training programs to augment students’ academic learning through practical experience, intended to equip students with a more comprehensive understanding of their selected area of study and broader functionality within that field.”

Accordingly, employers will need to implement formal mentoring and training plans for STEM OPT employees. Employers must also have a process in place for evaluating the OPT employee.

To guard against adverse effects on U.S. workers, this proposal would require terms and conditions of a STEM practical training opportunity (including duties, hours, and compensation) to be commensurate with those applicable to similarly situated U.S. workers. In addition to requiring a related attestation in the Mentoring and Training Plan, an employer would also be required to attest that: (1) the employer has sufficient resources and trained personnel available to provide appropriate mentoring and training in connection with the specified opportunity; (2) the employer will not terminate, lay off, or furlough any full- or part-time, temporary or permanent U.S. workers as a result of providing the STEM OPT to the student; and (3) the student’s opportunity assists the student in attaining his or her training objectives.

Worksite Visits and Program Requirements

Only accredited schools may participate in the STEM OPT program and DHS has the discretion to conduct on-site inspections at employer work sites to determine compliance.

The proposed rule authorizes a recurring evaluation process allowing ICE to monitor student progress during the OPT period consistent with the mentoring and training plan.

The proposed rule provides DHS discretion to conduct employer on-site reviews at worksites to verify whether employers are meeting program requirements, including that they possess and maintain the ability and resources to provide structured and guided workbased learning experiences.  Among program requirements, U.S. worker protections are now included in the program including a) the employer showing it has the resources to provide mentoring and training, b) the employer being forbidden from laying off US workers as a result of hiring a STEM OPT worker, and c) the training must be in the student’s field.

The proposed rule requires that the terms and conditions of an employer’s STEM practical training opportunity – including duties, hours and wages – be comparable to similarly situated US workers. Using DOL wage data is one way to demonstrate this. Employers will be required to provide wage information to DHS.

The existing E-Verify requirement remains unchanged as does the existing school reporting requirement and the cap-gap extension program.

Unemployment Days Extended

The current program allows a student to be unemployed up to 90 days during his or her initial period of post-completion OPT, and up to an additional 30 days (for an aggregate of 120 days) if the student receives a 17-month STEM OPT extension.

The proposed rule would retain the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allow an additional 60 days (for an aggregate of 150 days) for students who obtain a 24-month STEM OPT extension.In 2008, DHS issued an interim final rule that created a STEM OPT program where individuals who received a degree in certain science, technology, engineering and math fields could receive an additional 17 months of optional practical training beyond the 12 months open to most F-1 students. Employers have to participate in E-Verify.

Multiple 24 month extensions

Under the proposed rule, if a student uses the STEM OPT 24-month period and then enrolls in a new higher level STEM program, the student would be entitled to a new 24-month STEM extension (plus the 12 months of regular OPT).

Applicable STEM Categories

The proposed rule defines which STEM categories qualify based on the Department of Education’s CIP taxonomy and includes groups containing mathematics, natural sciences (including physical sciences and biological/agricultural sciences) engineering/engineering technologies and computer/information systems and related fields. Health and social sciences are not included. DHS will publish a list of accepted STEM fields and also update the Federal Register when the list changes.

Non-STEM Programs

Under the proposed rule, STEM OPT extensions are available to people in non-STEM programs if the F-1 student earned an earlier STEM degree from an accredited US institution. The new position must be in the same STEM-related field. For example, if a person gets an MBA after getting a STEM degree and then works for a company where the STEM background is needed, this might be eligible for STEM OPT.

Eligibility for Current STEM OPT Students 

F-1 students currently in STEM OPT would be able to request extensions for the additional 7 months as long as they apply within 120 days of the end of their 17-month period and the employer meets the new employer requirements.

Will the Proposed Rule Become Law?

Historically, some proposed rules never see the light of day in terms of going from proposed rule to a final rule.   That said, this proposed rule needs to become a final rule since it is in response to a court order demanding such rulemaking for STEM OPT for its continued existence.  The real question going forward: after comments are made by the public from October 18 to November 18, what changes will DHS ultimately make and what will the final rule look like!

When Will the Rule Become Law?

The public comment period regarding the proposed new regulations ends on November 18, 2015.  At the end of the comment period, the agency must review and respond to all the comments, draft a final rule, and send it to OMB.  The rule may then become effective after 30 days.