New STEM OPT Rules

On March 11, 2016, a final rule (the “New STEM Rule”) regarding the extension of the Optional Practical Training (“OPT”) program for students with science, technology, engineering, and mathematics (“STEM”) degrees was published in the Federal Register.  The New STEM Rule will go into effect on May 10, 2016. 

Among other things, the New STEM Rule expands the STEM OPT extension period from 17 months to 24 months, expands the list of degrees eligible for STEM OPT extension, and imposes training and employment condition requirements on employers of individuals benefitting from the STEM OPT extension.  Some of the new rule’s highlights are set forth below.

Expansion of STEM OPT Extension Period

The New STEM Rule will impact the STEM OPT extension period as follows:

  • The New STEM Rule increases the STEM OPT extension period from 17 months to 24 months.  As was the case previously, the STEM OPT extension period will be added to the initial 12 month period of OPT available to all F-1 students.  Thus, in combination with the regular 12 month OPT period, one STEM degree will entitle F-1 students to 36 months of OPT.

  • The list of degrees eligible for the extended STEM OPT period has been expanded. 

  • The STEM extension will be available to students who obtained a STEM degree at a U.S. accredited university even if their latest degree does not lie in a STEM field.   Thus, a student who earns a STEM degree and then goes on to earn a non-STEM advanced degree, such as a Master of Business Administration (MBA), may apply for a STEM OPT extension following the non-STEM degree so long as the practical training opportunity is directly related to the prior STEM degree.

  • F-1 students will be eligible for up to two periods of STEM extension so long as they have two qualifying STEM degrees (one at a higher level of education than the other) and the higher level degree is obtained between the two periods of STEM OPT extensions. 

Employer and Student Requirements

The New STEM Rule imposes several new requirements upon employers and students:

  • Training Plan (student and employer) - The New STEM Rule requires each STEM OPT student to prepare and execute with their prospective employer a formal training plan that identifies learning objectives and a plan for achieving those objectives. The STEM OPT student and his or her employer must work together to finalize that plan, which the student must then present for approval to his/her Designated School Official (“DSO”). 

  • Periodic Reporting (student and employer) - The New STEM Rule imposes an annual self-evaluation requirement, pursuant to which the student must report to the DSO on his or her progress with the practical training. The student's employer must sign the self-evaluation prior to its submission to the DSO. The rule also requires that the student and employer report to the DSO changes in employment status, including (i) the student's termination or departure from the employer and (ii) material changes to, or material deviations from, the student's formal training plan.

  • E-Verify Enrolment (employer) – As was the case previously, in order to hire students on their STEM OPT extension, the employer must be enrolled in and remain in good standing with E-Verify.

  • Employer Attestations (employer) – In addition to assisting with the aforementioned reporting and training plan requirements, the employer must attest on Form I-983, which the student must then provide to the DSO, that (1) employer has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity helps the student attain his or her training objectives; and (4) the terms and conditions of the STEM practical training opportunity—including duties, hours, and compensation—are commensurate with the terms and conditions applicable to the employer’s similarly situated U.S. workers or, if the employer does not employ and has not recently employed more than two similarly situated U.S. workers in the area of employment, the terms and conditions of other similarly situated U.S. workers in the area of employment.

Transition Rules

Pending STEM extension applications - Applications for the STEM extension that are approved before the May 10 effective date will be subject to current STEM OPT extension rules.   Applicants whose petitions are pending on May 10 will need to provide DHS with evidence of compliance with the New STEM Rule. 

F-1 Students currently on STEM extension – Students currently on the STEM OPT extension may extend their STEM OPT period by 7 months if they (i) properly file an Application for Employment Authorization with USCIS between May 10, 2016 and August 8, 2016, and within 60 days of the date their Designated School Officer enters a recommendation for the 24-month STEM OPT extension, and (ii) have at least 150 calendar days remaining prior to the expiration of the 17-month STEM OPT Employment Authorization Document at the time the Application for Employment Authorization is filed.