By Lauren Wojtowicz Cohen
The Department of Homeland Security has released a much anticipated final rule, amending regulations on the F-1 nonimmigrant student visa optional practical training (“OPT”), for certain students with U.S. degrees in science, technology, engineering, or mathematics (STEM) fields. Significantly, the final rule allows qualifying F-1 STEM students who elect to pursue 12 months of OPT employment to extend that OPT period by an additional 24 months. Previously, such students could only apply to extend their initial OPT period by 17 months. The extension will be available for applications filed on or after May 10, 2016.
One advantage of the new rule for STEM OPT students and their U.S. employers is the additional opportunities they will gain to submit petitions in the annual H-1B lottery, to obtain H-1Bs for the students. The extension recognizes American businesses’ need for STEM OPT students to fill skills gaps in the United States.
In addition to the longer extension, the final rule also improves and increases oversight over STEM OPT extensions by, among other things, requiring employers to implement formal training plans, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. As with the prior 17-month STEM OPT extension, STEM OPT extensions are only available for students employed by employers who participate in E-Verify.
Under the new regulations, before applying for a STEM OPT extension, a STEM OPT student must work with his or her employer to complete and submit the new Form I-983. The form contains questions that determine a student’s eligibility for the extension, and requires that the employer outline the training plan for the OPT student. Specifically, the form requires:
- A description of the student’s role in the organization and how that role is related to enhancing the student’s knowledge obtained through her STEM degree;
- An explanation of how the assignments the student will receive will help the student meet his or her specific objectives for work-based learning;
- An explanation of how the employer will provide oversight of the individual, with copies of training or other policies that guide such oversight and supervision included; and
- A description of how the employer will measure whether the student is acquiring the desired skills.
Employers must also certify that the terms and conditions of employment (including compensation) for OPT students are commensurate with the terms and conditions of employment offered to similarly situated American workers.
Employers are encouraged to consult their immigration attorneys to determine whether students on existing their OPT programs are eligible to apply for the extension and to ensure compliance with the new requirements.