International students with Science, Technical, Engineering and Math (STEM) degrees may become eligible to work in the U.S. for up to 3 years under new proposed rules. On October 19, 2015 the U.S. Department of Homeland Security (DHS) issued proposed changes to its regulations, which offer both additional benefits and employer requirements for students and businesses using post-completion STEM Optional Practical Training (OPT). The proposed rules are in a comment period and are not final.
Overview of the proposed rules
The proposed STEM extension rules will replace the 2008 STEM extension rule currently available to certain STEM students. The proposed regulations are in response to a federal district court’s decision invalidating USCIS’s 2008 STEM extension rule and also a part of President Obama’s executive action to strengthen and extend on-the-job training for STEM graduates of U.S. universities. After completing a post-secondary degree program (e.g., undergraduate, graduate or post-graduate) in the U.S., an F-1 visa student can apply for the post-completion OPT program to get work authorization for 1 year. However, those in qualifying STEM fields can apply for an additional work permit beyond the 1-year under the STEM OPT program.
The 2008 STEM OPT program gave STEM students work authorization for an additional 17 months after the 12-month period available to any F-1 student (29 months in total). The proposed rule would extend the current STEM OPT period from 17 months to 24 months, for a total of 36 months.
The proposed changes also indicate DHS will be revising the list of qualifying STEM fields using the Department of Education’s CIP taxonomy, which would expand qualifying fields for the program.
Changes for students
The proposed STEM OPT program gives students a 24-month work permit extension beyond the 12 months available under the general OPT program. Here are some highlights for students:
- During the transition phase, students currently in a STEM OPT program may apply to extend their work authorization for an additional 7 months, and students who have already applied for the STEM OPT program may withdraw their applications and re-apply for a 24-month extension.
- Students must have graduated from an educational institution accredited by an agency recognized by the Department of Education.
- Students must file the application for Employment Authorization within 60 days of the date the Designated School Official (DSO) enters the recommendation in the Student and Exchange Visitor Information System (SEVIS) as opposed to 30 days under the 2008 rule.
- The proposed program allows up to 60 days of unemployment during the STEM OPT period, in addition to the 90 days allowed for the initial OPT period.
- Students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level are eligible for an additional STEM OPT extension.
- Students must submit the Mentoring and Training Plan to the DSO and report any changes and adjustments to the Plan. Students must provide evaluations of their training progress every six months.
- Students in a new initial post-completion OPT program may apply for a STEM extension for a position directly related to the previously obtained STEM degree from an accredited school within the last ten years if they have not requested a STEM extension.
Changes for employers
The proposed rules would retain the provision requiring employers to be enrolled in USCIS’ e-Verify program. However, employers would be required to satisfy additional obligations according to the following changes:
- Employers must implement formal mentoring and training programs.
- Employers must provide a sworn attestation, as a part of a Mentoring and Training Plan, affirming that: (1) the employer has sufficient resources and trained personnel to provide the training; (2) the employer will not terminate, lay off, or furlough any U.S. workers in favor of the STEM OPT student; and (3) the employer will provide all opportunities to the student in attaining training objectives. In addition, the terms and conditions of the employment opportunity must be commensurate with those provided to the similarly situated U.S. workers.
In addition, DHS has discretion to conduct worksite visits in order to verify the training program.
Visa options to continue work in the U.S.
For students or employers who want to further extend employment, there are other options. These may include temporary nonimmigrant work visas (such as H and O visas) or employment-based immigrant visas (Extraordinary abilities, Outstanding Researcher or Professor, National Interest Waiver, Exceptional abilities or others) that lead to a green card. Determining the appropriate visa options depends on the student’s credentials and the position being offered by the employer. Certain immigrant visas may not require an employer’s sponsorship.
If you are interested in extending work authorization or seeking nonimmigrant or immigrant visa options based on employment, contact us to discuss the best option for you.