STEM OPT: What Employers Should Know

STEM OPT: What Employers Should Know

Introduction:

On March 11, 2016, the Department of Homeland Security (DHS) published a final Rule on Optional Practical Training Extension for STEM students (STEM OPT). This Rule allows F-1 students who received a Science, Technology, Engineering, and/or a Mathematics (STEM) Degree from an accredited U.S. institution and who elected to pursue 12 months of OPT in the United States to apply for a 24-Month Extension of their post-completion OPT. This new Rule replaces the former STEM OPT 17-Month Extension Rule that was vacated due to a 2015 D.C. District Court decision (Washtech v. DHS). The current STEM OPT Extension Rule took effect on May 10, 2016 with three overarching goals:

a)        enhance the educational benefit afforded by the Extension,

b)       ensure the integrity of the program, and

c)        Provide security for US workers.

In order to achieve these goals, DHS made drastic changes and additions to the previous STEM OPT Rule.  The specific changes and additional requirements are indicative of these overarching goals. The new Rule’s requirements, though serving legitimate intentions, can cause issues for prospective STEM OPT employers. These requirements are comprehensively discussed below. First, it is important to emphasize the benefits of the 24-Month STEM OPT Extension Rule. It provides an international student the opportunity to maintain status and work in the United States for a longer period; consequently, these benefits enhance the overall educational value of their STEM Degree.  The Rule also provides employers the advantage of employing skilled STEM OPT students for seven additional months. However, as mentioned above, these seven extra months come with administrative burdens.

Employers should decide whether the benefit of a longer period with STEM OPT students outweighs new administrative burdens. To help prospective STEM OPT employers make an informed decision, we have listed the noteworthy additional requirements below.

Additional Requirements:

  • Complete a Detailed Training Program and Form I-983 With the Student (Employee):
    • To apply for a STEM OPT Extension, students and employers must file a completed Form I-983 to the students’ Designated School Official (DSO). Form I-983’s Training Plan (Section 5) must be completed together, by the employer and the student. The Training Plan must serve as proof of the employer’s commitment to providing a structured and guided work-based learning experience. To do so, the Training Plan should specify:
    •        how the student’s job duties relate to the student’s STEM Degree
    •        what the student’s overall learning goals are
    •        how STEM OPT employment enhances the student’s academic development
    •        how the employer provides oversight and guidance; and
    •        how the employer assesses the student’s progress
  • The Employer Must Make Specific Attestations:
    • The employer must attest to the fact that the STEM OPT student will not replace a full time, part-time, or temporary U.S. worker. This attestation requirement provides protection for US workers.
    • The opportunity will help the student achieve his or her educational objectives. This attestation makes the employer mindful of, and committed to the primary learning objective of STEM OPT. A STEM OPT job must give students the opportunity to supplement theoretical knowledge gained from their degree with related practical hands on experience.
    • Employers must attest to having sufficient resources and training personnel available to provide appropriate training in connection with the student’s role in the STEM OPT employment. This attestation adds to the integrity of the STEM OPT by requiring the employer to attest that they can actually train the student.
    • The terms and conditions of the student’s employment must be commensurate with similarly situated US workers. This primarily means that the student’s pay is relatively the same as similarly situated US workers, either within the company or the company’s surrounding. “Similarly situated US workers” means workers who have similar academic credentials, experience, and job duties as the STEM OPT student. This attestation provides protection for US workers and the STEM OPT student.
    • Reporting Requirements:
      • Whenever a student is terminated or leaves without authorization or notice, employers are obligated to report it to the student’s DSO, within 5 business days.
      • Employers must report to the DSO whenever there is a material change to the student’s employment. Common examples of a material change include: a) change in compensation; b) change in employer/employee’s address; c) a substantial alteration of the student’s job title or duties.
  • Student’s Annual Self-Evaluation:
    • Under the new Rule, students must complete a self-evaluation and submit it to the DSO within ten days of his or her first year and within 10 days of the completion of the 24-Month STEM OPT Extension. The employer must review this self-evaluation and sign it for proof of review.
    • DHS site visits:
      • Under the new Rule, employers are subject to potential DHS site visits. DHS reserves the right to visit and inspect an employer’s site location when there are questions about the employers’ compliance with the new Rule. Usually, DHS will notify the employer about a site visit within 48 hours, but this is not always the case.

Conclusion:

Due to these new requirements, employers ought to make a cost-benefit analysis. Specifically, they should weigh the benefits of employing STEM OPT students for 2 years with the costs of the requirements mentioned above. Some employers might have to change their business structure in order to adhere to the new Rule. Simply put, some companies might be unable to adhere to the Rule. In the preamble to the final Rule, DHS lists certain types of employment arrangements for which the STEM OPT Extension is “not apt.” DHS’ language in the preamble has caused many employers’ apprehension and confusion about whether or not they will be able to hire STEM OPT students. Specifically, whether or not Tech Consulting companies can hire STEM OPT students has caused substantial confusion for employers and for legal experts in the field of Immigration Law. For more information on this issue, see part two of this article. For further information on STEM OPT in general, visit the Department of Homeland Security’s website at  https://studyinthestates.dhs.gov/stem-opt-hub. Lastly, due to the complexity of the new Rule, students and employers should consider seeking help from an Immigration Law Attorney.