By Doreen D. Dodson
In 2008, the U.S. Department of Homeland Security (“DHS”) passed an interim rule significantly benefitting employers who hire and want to retain talented foreign student graduates in Science, Technology, Engineering and Mathematics (“STEM”). DHS expanded the STEM Optional Practical Training (“OPT”) program for foreign exchange students on F-1 visas, who recently graduated in those fields. This permitted eligible students to extend employment limited to their field of study for 17 additional months beyond the 12 months otherwise authorized for OPT students. The STEM OPT program particularly benefited employers whose employees did not initially secure an H-1B through the H-1B cap lottery by providing those employees with a longer period of OPT employment, and therefore multiple chances at the lottery.
DHS’s 2008 interim rule remained in effect until August 12, 2015, when the U.S. District Court for the District of Columbia vacated the rule in Wash. Alliance of Techn. Workers v. U.S. Dept. of Homeland Security, Civil Action No. 14-529 (D.D.C. Aug. 12, 2015), after finding that DHS had failed to follow appropriate procedures when enacting the rule. The decision jeopardized the employment of thousands of young workers in STEM fields. However, recognizing that immediate implementation of the court order would cause great hardship on employers, the Court stayed the decision until February 12, 2016. In response to the District Court’s ruling, on October 19, 2015, DHS published a proposed rule that permits certain foreign national students with STEM degrees to extend their OPT period by 24 months beyond the initial 12 month period. The proposed new rule is entitled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” and is subject to a comment period that is scheduled to end on November 18, 2015.
The 24-month extension would effectively replace the 17-month STEM OPT extension that was available to certain STEM students prior to the district court’s order. But there are several other significant modifications in the proposed rule. For example, the proposed rule, if adopted, allows extensions only to students with degrees from accredited schools. Eligibility for a STEM OPT extension is also expanded to permit students to use a “previously” obtained and directly related STEM degree from an accredited school as a basis to apply for a STEM OPT extension. This “previously” obtained degree would make the STEM OPT extension available to students with a prior background in STEM whose current OPT is based on their study towards a different degree. In addition to the 24-month STEM OPT extension, the proposed rule increases oversight over STEM OPT extensions by requiring the implementation of formal mentoring and training plans by employers and adding wage and other protections for STEM OPT students and US workers.
The proposed rule continues to authorize STEM OPT extensions only for students employed by employers enrolled in the E-Verify program. While the proposed rule is good news for F-1 STEM students and their Employers, Employers need to be mindful of the rule’s mentoring, training, and wage requirements.