DHS Extends Time Period for STEM OPT Employment Authorization

31 May 2016 Labor & Employment Law Perspectives Blog
Author(s): Anita M. Sorensen

As of May 2016, the Department of Homeland Security (DHS) has expanded the time period during which a foreign student with a degree from a U.S. university in a science, technology, engineering, or mathematics (STEM) field may work as a trainee. American companies sometimes struggle to fill specialty jobs requiring STEM degrees, and foreign students with these qualifications are frequently among the pool of job applicants. Foreign students, however, often present employment authorization challenges for American companies. The new DHS regulation offers some relief.

Foreign students primarily come to the United States under the F-1 temporary immigration classification to study at American colleges and universities. Around the time of their graduation, F-1 students may apply to DHS for employment authorization to gain practical experience in their degree fields by working at an American company. This authorization is called optional practical training (OPT). The initial OPT is available for up to 12 months and covers all degree fields. Students who earn STEM degrees may become eligible for additional OPT if they are hired by employers enrolled in DHS’s E-Verify program. Under the new regulation, DHS has expanded the period for STEM OPT from 17 months to 24 months. Combining the 12 months of regular OPT with the STEM OPT provides the F-1 student with temporary employment authorization for up to three full years.

The expanded STEM OPT is accompanied by several new obligations for employers. Among others, an employer’s training program now must be in writing and explain how the practical training augments the student’s academic program in the STEM field. DHS also forbids an employer from hiring the F-1 student based upon STEM OPT if doing so will displace current full-time or part-time employees. DHS will enforce its new requirements through various mechanisms, including site visits by Immigration and Customs Enforcement (ICE) officers.

To employ an F-1 student in STEM OPT, an employer must take several actions such as the following:

  • Enroll in DHS’s E-Verify program and remain in good standing with that program throughout the STEM OPT employment.
  • Offer the F-1 student a paid position for at least 20 hours a week.
    • F-1 students in a period of STEM OPT may not engage in unpaid internships or volunteer activities to meet the 20-hour per week requirement.
  • Prepare and sign, under penalty of perjury, a formal training program on ICE’s new form. The program must be submitted to the school, which shares the program with ICE.
    • The program must state the training objectives, including the specific knowledge, skills, and/or techniques that will be learned.
    • The program must explain how the training objectives will be achieved through learning at the employer’s worksite.
    • The employer must state how it will supervise the training by assigning knowledgeable staff members.
    • The employer must specify how it will evaluate the student’s progress under the training program. The employer is permitted to use its existing performance review framework if it will provide the evaluation information requested by ICE.
    • The program must state the compensation offered to the student and confirm that the employer is treating the foreign student the same as similarly-situated employees as to the duties, hours, and compensation.
  • Give notice to the school within five business days if the student leaves employment prior to the end of the STEM OPT period. If there is no formal resignation or termination, but the student fails to report to work without permission for five business days, the employer is deemed to know that the employee has left the job. The employer must promptly notify the school of the student’s departure or job abandonment. The school, in turn, reports this information to ICE.
  • Prepare an amended training program if there are any material changes in the program.
  • Complete periodic evaluations of the student’s progress under the training program and, in conjunction with the student, submit the evaluations to the school. The school will share the evaluation reports with ICE.
  • Agree to site visits by ICE to review the employer’s compliance with the training plan and other STEM OPT requirements. Generally, ICE will give the employer 48 hours’ notice. If ICE receives a complaint or has information about the employer’s possible noncompliance, ICE will make an unannounced visit to the employer.

For a limited period, DHS will permit F-1 students who received only 17 months of STEM OPT to request the additional seven months that is now available under the new rule. Eligible students must have at least 150 days of STEM OPT remaining on the current authorization period. Further, the employer must comply with the new requirements, which includes preparation and implementation of a formal training program to cover the seven-month extension period. The extension request must be filed with DHS by August 8, 2016.

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