March 17, 2016

New Regulations on 24-Month OPT STEM Extension

The U.S. Department of Homeland Security recently published amended regulations that will allow for a 24-month extension to the optional practical training (OPT) work authorization for certain international student graduates, instead of 17 months, as previously authorized. The new regulations will take effect on May 10, 2016. Individuals who graduate with a degree in science, technology, engineering or mathematics (STEM) from a U.S. college or university may qualify for the 24-month period of work authorization, if both they and their prospective employer meet certain conditions.

If you are interested in finding out more about this STEM OPT rule, see below:

Student Eligibility

  • Must have graduated from an accredited U.S. institution of higher education
  • Must have earned a STEM degree from DHS’s Designated Degree Program List
    • The extension could be based on the student’s most recently earned degree or on a previously earned degree (subject to conditions)
  • Must have previously been granted a 12 month period of post-completion OPT
  • The proposed training/employment must be directly related to the student’s major area of study

Employer Eligibility

  • Must be enrolled in E-Verify
  • Must provide a formal training plan that:
    • Identifies learning objectives
    • Includes a plan for achieving objectives
  • Must provide at least 20 hours/week of work to the student
  • Cannot replace a U.S. worker
  • Must compensate the student in a manner “commensurate with that applicable to a similarly situated U.S. worker”
    • This means commensurate with U.S. workers performing similar duties and with similar backgrounds
    • If there are no similarly situated U.S. workers within the employer’s own workforce, the comparison is to workers employed by other similar companies in the area

The new regulations come with additional program oversights and employer obligations. Most notably, employers and OPT students must together develop a formal training plan and complete and sign DHS Form I-983. The OPT-seeking student must return this paperwork to his or her Designated School Official (DSO). The DSO will review the training plan for compliance before issuing a new Form I-20, which the student will then use to apply for an Employment Authorization Document. Throughout the 24 month training period there are continued reporting requirements on the part of both the student and his or her employer, such as:

Employer’s Obligations During 24-Month Extension

  • Must report any material changes to, or deviations from, the student’s formal training plan
    • Material changes include:
      • Any change to the Employer Identification Number resulting from a corporate restructuring
      • Any reduction in compensation that is not tied to a reduction in hours worked
      • Any significant decrease in hours that the OPT student is working
      • Any changes to the employer’s commitments or student’s learning objectives
  • Must report a termination of the student’s employment to the DSO within five days
  • May be subject to a DHS site visit to the employer’s workplace

Student Obligations During the 24-Month Extension

  • Must complete an annual self-evaluation of his or her progress
  • Must obtain the employer’s signature on the evaluation and return the evaluation to his or her school’s DSO
  • Must report to his or her DSO every six months
  • Must report any termination of employment to his or her DSO within 10 days
  • Must complete and submit a new I-983 within 10 days of starting a new OPT employment position

As mentioned above, the new regulations take effect on May 10, 2016 and so until May 9, 2016, the previous 17-month STEM OPT regulations will remain in effect. Any 17-month STEM OPT issued before May 9, 2016 will remain valid until the approved EAD expires, is terminated, or revoked. Any STEM graduate who has not previously applied for a STEM OPT as of May 10, 2016 may apply for the 24 month extension. Students who currently hold a 17 month STEM OPT may apply for the additional 7 months of STEM OPT under the new regulations, so long as they have at least 150 calendar days remaining on their EAD validity at the time they apply. They must apply before August 8, 2016, by meeting the conditions outlined under the new regulations. Any STEM OPT extensions that were filed before May 9, 2016 and remain pending after that date will receive an RFE and may be approved for 24 months, if they demonstrate compliance with the new regulations.

Prospective employers and STEM graduates should carefully review the new 24-month STEM OPT program requirements in order to ensure that they are prepared for the obligations. We encourage employers to contact our firm with any questions.

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