News Release from Jewell Stewart & Pratt – March 11, 2016 On March 11, 2016, the U.S. Department of Homeland Security published a Final Rule, effective May 10, 2016, 81 Fed. Reg. 13039 (March 11, 2016), that provides requirements and procedures for 24-month extensions to post-completion Optional Practical Training (OPT) work authorization of foreign nationals who are in F-1 student visa status with U.S. degrees in fields of Science, Technology, Engineering, and Mathematics (“STEM” fields). The new regulation also contains transition provisions for approved and pending STEM OPT applications filed under prior regulations. Finally, the new regulation carries over the “cap gap” work authorization and status extension provisions that existed under prior rules.
Transition from 17-month STEM OPT to 24-month STEM OPT
The new regulation (new rule) succeeds and replaces the agency’s April 8, 2008 regulation (“the old rule”), which provided for 17-month “STEM” extensions. Under the new rule’s transition provisions, a 17-month STEM extension granted before May 10, 2016 under the old rule will be effective for the full 17 months granted, and is subject to the old rule’s terms and conditions of STEM OPT. The 17-month STEM OPT granted under the old rule may be extended for 7 additional months under the new rule if an application is filed with USCIS in the 60-day window from Tuesday, May 10, 2016 through Monday, August 8, 2016, provided that, as of the date of filing of the application, there are at least 150 days (approximately 5 months) remaining of the original 17 months. (Thus, someone with 17-month STEM OPT expiring before October 7, 2016 -- or October 8th if date of filing is counted -- cannot apply for the 7-month extension.)
For 17-month STEM OPT applications filed before May 10, 2016 under the old rule and still pending with USCIS on or after May 10, 2016, USCIS will issue a Request for Evidence (RFE), giving the applicant the opportunity to supplement the application with items to support approval of 24-month STEM OPT under the new rule. The RFE will request a new Form I-20 on which the person in charge of the international student office (the Designated School Official, or “DSO”) of the applicant’s school has endorsed, on or after May 10, 2016, a recommendation for 24 months of STEM OPT. To get this endorsed I-20 from the DSO, the applicant must complete and provide a Form I-983 “Training Plan for STEM OPT Students,” bearing signed certifications by the employer.
Any STEM OPT granted under the new rule, whether for 7 months or 24 months, is subject to the requirements, terms, and conditions of STEM OPT under the new rule, which are described in detail below.
“Cap gap” work authorization and status extension
The new regulation provides, as the prior rule did, an automatic extension of F-1 status and OPT work authorization to bridge the “cap gap” between an employee’s OPT expiration date and the October 1st start date of the next government fiscal year, when an approved cap-subject H-1B petition and change-of-status take effect. For the beneficiary of a cap-subject H-1B petition to get “cap gap” work authorization, the H-1B petition must be timely filed (and selected in the lottery, if applicable), it must include a request for change-of-status from F-1 to H-1B effective the following October 1st, and the beneficiary must not have violated his/her F-1 status. “Cap gap” work authorization is automatic, but for the employer’s I-9 purposes, a recipient of cap-gap work authorization will need to get an updated I-20 from his/her school, documenting cap-gap work authorization. Cap-gap work authorization ends on the sooner of October 1st, or rejection, denial, revocation, or withdrawal of the H-1B petition or its component change-of-status application.
24-month OPT extension for STEM degree-holders with E-Verify employers
Throughout the new regulation, a foreign national in F-1 (student visa) status is referred to as a “student” notwithstanding his/her having completed studies. We adopt the same terminology and use the term “student” herein as it is used in the regulation.
Highlights of the new regulatory provisions on STEM extensions of F-1 OPT include:
- The new regulation provides for a 24-month extension (as contrasted with the old rule’s 17-month extension) for graduates of Bachelor’s, Master’s, or Ph.D. degree programs in STEM fields from accredited U.S. institutions, who are offered jobs related to their STEM field of study with employers enrolled in the government’s E-Verify program.
- The 24-month STEM extension can extend a grant of normal 12-month post-completion OPT, even if the student’s qualifying STEM degree was a prior degree earned in the U.S. A qualifying prior degree must have been conferred no more than ten years prior to the current school’s I-20 endorsement recommending STEM OPT.
- A student may be granted up to two STEM OPT extensions in his/her lifetime; the first one may have been a 17-month extension under the old rule (with or without the additional 7 months offered by the new rule), and the second STEM extension, of 24 months, is available if the student has earned a second qualifying STEM degree that is a higher-level degree than the first.
- As described above, the new regulation has transition provisions for 17-month STEM extension applications pending or approved under the prior rule, allowing those applicants to request an additional 7 months, for a total of 24 months.
- Applications for any STEM OPT under the new rule must be accompanied by a “Training Plan for STEM OPT Students” (Form I-983), completed by the student and bearing signed certifications by the employer confirming its adherence to the training plan and its non-displacement of U.S. workers.
- Under the new rule, STEM OPT employment cannot be volunteer work, must be at least 20 hours per week, and must have compensation commensurate with that of other similarly situated workers for the same employer.
- Unemployment for periods totaling more than 90 days during the 12 months of initial post-completion OPT, or 150 days during the combined initial post-completion OPT and the 24-month STEM extension under the new rule, will constitute a failure to maintain lawful F-1 status.
- During the validity period of a STEM OPT extension under the new regulation, there are numerous reporting obligations that must be met by the student, the employer, and the DSO at the educational institution of the student’s most recent enrollment.
Qualifying STEM fields
STEM degrees are degrees in fields on the “STEM Designated Degree Program List,” the new version of which is effective on May 10, 2016 (with the new STEM OPT regulation) and is posted on the website of DHS’s Immigration & Customs Enforcement (ICE), which has oversight of F-1 students in the U.S. Fields of study on the STEM Designated Degree Program List are drawn from the “Classification of Instructional Programs” (CIP) taxonomy of the U.S. Department of Education. It is not always possible for a student, an employer, or their legal counsel to know whether a particular major at a particular college or university falls within one of the listed STEM fields. The DSO of the educational institution of the student’s most recent enrollment is the best resource for that determination, because the DSO is required to determine that any period of STEM OPT the DSO recommends on the student’s Form I-20 is based on a qualifying degree in a qualifying STEM field.
The STEM Designated Degree Program List may be changed from time to time. Updates will be published on the ICE website at www.ice.gov/sevis. In addition, updates may be published in the Federal Register.
A STEM extension of F-1 OPT under the new rule may be based only on, and may be used only for, work for an employer that:
- Has a federal Employer Identification Number (EIN) for tax purposes; and
- Is enrolled, or is participating through an agent, in the federal government’s E-Verify Program.
The E-Verify program requires an enrolled employer to electronically verify the work authorization documents of all new hires as part of the employer’s normal I-9 process. E-Verify program enrollment is free of charge.
Similar to the old rule, the new regulation on STEM OPT says that the employer must either itself be enrolled in E-Verify, or must use “an employer agent to create its E-Verify cases” and have “a valid E-Verify Client Company Identification number.”
Qualifying job (“training opportunity”)
20+ hours per week: Employment under the new STEM OPT regulation must be for at least 20 hours per week (except during any periods of leave under the employer’s leave policies), and the duties, hours and compensation must be “commensurate” with, i.e., consistent with the employer’s practices with regard to, “similarly situated” U.S. workers in the area of employment.
Commensurate compensation with similarly situated U.S. workers: For purposes of determining whether the compensation of an F-1 employee on his/her 24-month STEM extension is commensurate with the compensation of “similarly situated” U.S. workers, the regulation lists several factors for comparing the employee on STEM OPT with the employer’s U.S. workers:
- Job duties
- Level of supervision
- Industry expertise
- Skill set
- Responsibility level
Form I-983 “Training Plan for STEM OPT Students”: For the student’s DSO to issue a Form I-20 recommending STEM OPT, which is a prerequisite to the student applying for STEM OPT, the new rule requires that the student provide the DSO with a Form I-983 “Training Plan for STEM OPT Students,” completed by the student and bearing signed certifications by the employer. The employer certifications on Form I-983 are certifications that:
- The employer has sufficient resources and personnel to provide appropriate training.
- The job assists the student in reaching his/her training goals.
- The STEM OPT employee will not replace a full-time, part-time, temporary, or permanent U.S. worker.
- The employer will adhere to the training plan set forth in the I-983.
A training plan set forth on Form I-983 must include the following elements:
- How the STEM OPT “training opportunity,” i.e., job, relates to the student’s STEM degree
- Goals of the STEM OPT “training opportunity,” i.e., job
- Knowledge, skills, and techniques to be imparted
- How the training goals will be achieved in the particular job with the particular employer
- The student’s compensation in the STEM OPT job
- The performance evaluation process (which, according to the regulations, may be the employer’s existing performance evaluation process)
Note: Elsewhere in the new regulation there is a separate requirement that the student provide his/her DSO with a self-evaluation, signed off by the employer, after the initial 12 months of STEM OPT and at the conclusion of each STEM OPT job)
- The oversight and supervision methods (which, according to the regulations, may be the employer’s existing oversight and supervision practices)
Material changes to job (“training opportunity”) and changes of employer
If there is a “material change” to the details of the job set forth in the Form I-983 (e.g., a change in the employer’s EIN, a reduction in the rate of pay, a significant reduction of hours, or anything rendering the I-983 inaccurate with regard to the nature, purpose, oversight, or assessment of the training opportunity), the student must complete a modified I-983, get the requisite employer-signed certifications, and submit the modified I-983 to the DSO “at the earliest available opportunity.”
If the student on STEM OPT changes employers, the student must provide his/her DSO with a new Form I-983, including the new employer’s signed certifications, within 10 days of the employment start date. Upon receiving the new Form I-983, the DSO will issue a new I-20 to the student, affirming STEM OPT employment authorization with the new employer is recommended.
Process of applying for 24-month STEM OPT
To get the additional 24 months of post-completion OPT, an F-1 student who has been awarded a U.S. STEM degree follows this process: (1) the student must secure an offer from an E-Verify-participating employer and contact the DSO at his/her school of most recent enrollment for guidance in preparing the Form I-983 training plan and anything else prescribed by the school; (2) in the SEVIS database that tracks all foreign students, the DSO records that 24 months of STEM OPT has been recommended for employment with the employer, and the DSO issues a Form I-20 to the student, indicating the same; (3) the student must file Form I-765 “Application for Employment Authorization” with U.S. Citizenship & Immigration Services, along with the required filing fee (currently $380), photographs, and other supporting documents. The application will include evidence of the STEM field of the applicant’s qualifying degree, and evidence that the employer is enrolled/participates in E-Verify.
An application by any F-1 student (STEM or non-STEM) for the initial grant of post-completion OPT, which can be up to 12 months, must be filed with USCIS in the window from 90 days before to 60 days after degree program completion, and not more than 30 days from the DSO’s recommendation of OPT on Form I-20.
An application for a 24-month STEM OPT extension must be filed with USCIS in the 90-day window immediately prior to the expiration of the applicant’s initial grant of OPT. If the application is timely filed, the applicant is authorized to work for the employer for up to 180 days past the expiration of his/her initial OPT while the application is pending.
Expanded monitoring and reporting obligations for student, school, and employer
The supplemental 24-month period (or 7-month portion) of OPT for STEM graduates carries expanded obligations for both employer and employee, and for the school’s DSO.
The employer, in addition to complying with E-Verify procedures as part of the I-9 process when new hires are onboarded, must certify its adherence to the I-983 training plan and must provide, per the details set forth in the Form I-983, relevant training in the STEM field, oversight/supervision of the work, and evaluation of the performance of the employee on STEM OPT. To monitor compliance, DHS may make site visits to places of employment of employees on STEM OPT. DHS must give the employer 48 hours’ notice of a site visit, unless the visit was triggered by a complaint or other evidence of noncompliance, in which case no advance notice to the employer is required.
The student with STEM OPT under the new regulation, in order to maintain lawful F-1 status, is required to notify his/her DSO, within 10 days, if any of the following changes:
- Legal name
- Residential address
- Mailing address
- Employer name
- Employer address
- Loss/interruption of employment
The student with STEM OPT must, in addition, submit a “validation report” to his/her DSO every six months, confirming that there have been no changes to the above-listed details since the student’s most recent update.
The student must do a self-evaluation at the end of the initial 12 months of STEM OPT, and at the conclusion of each STEM OPT job. The student’s self-evaluation must be signed by the student and the employer. The student must provide each self-evaluation to the DSO within 10 days of the end of each evaluation period.
The DSO monitors the student’s maintenance of lawful F-1 status throughout his/her degree studies and while he/she is on post-completion OPT and any STEM extensions, and tracks changes in DHS’s Student & Exchange Visitor Program’s (SEVP’s) SEVIS database. The DSO issues Forms I-20 to the student as needed throughout F-1 student status, including when necessary to indicate that the DSO recommends or affirms STEM OPT employment with a particular employer. The DSO reviews all of the student’s Forms I-983 and self-evaluations associated with his/her STEM OPT, and makes these available to DHS in SEVIS. When a student on STEM OPT reports any changes, as required (name, address, employer, employer address, job termination), the DSO is required to report the changes to DHS within specified time limits.
This article is for information only. It is not intended as legal advice, and should not be relied upon as legal advice in any specific case.
© Jewell Stewart & Pratt 2016