Revised STEM OPT Rule Creates New Opportunities and Obligations

On Friday, March 11, the Department of Homeland Security (DHS) published a rule expanding Optional Practical Training (OPT) opportunities for F-1 students who have earned a degree in Science, Technology, Engineering, or Math (STEM).
 
The original rule, published in 2008, granted an additional 17 months of OPT work authorization (for a total of 29 months) to STEM graduates whose employers participate in the E-Verify employment verification program. A Federal court vacated the original rule in August 2015, but delayed the effective date of its ruling until May 10, 2016, to allow DHS to develop a new rule.
 
The new STEM OPT rule is effective May 10, 2016, consistent with the court’s order. The rule expands OPT opportunities for STEM graduates, and imposes new obligations on both students and employers.
 
STEM graduates will now be eligible for an additional 24 months of OPT work authorization. Combined with the 12 months of post-completion OPT available to all students, STEM graduates potentially could have 36 continuous months of post-completion OPT work authorization.
 
To be eligible for the additional OPT, a student must have earned a degree in a field of study designated by DHS as a qualifying STEM field. DHS will revise and update the list of acceptable STEM fields based on the U.S. Department of Education’s categorization. The rule retains the requirement that the student’s STEM OPT employer participate in E-Verify.
 
The rule clarifies that a student may obtain a STEM OPT extension based on his or her most recent degree or on a previously earned STEM degree. The STEM OPT employment must relate to the STEM degree field. A student may also obtain a second STEM OPT extension if he or she earns another STEM degree at a higher degree level.
 
In addition to expanding student opportunities for OPT, the rule adds certain reporting requirements for students, places a new focus on the training provided by STEM OPT employers, and adds protections for U.S. workers.
 
The rule requires students to report their name, address, and employment details to their Designated School Official (DSO) every six months, and must report any changes in employment status or deviations from the employer’s training plan within 10 days of the change. Students also must complete and submit to the DSO two self-evaluations during the STEM OPT period.
 
STEM OPT employers must implement a formal, individualized training plan (using DHS Form I-983) and have an annual performance evaluation process in place. Employers may rely on existing training and evaluation processes as long as they meet the STEM OPT requirements. The training plan must:

1. Identify the goals of the training opportunity, including any knowledge, skills, and techniques to be taught
2. Explain how the goals will be achieved
3. Describe the performance evaluation process, and
4. Describe the methods of oversight and supervision

 
STEM OPT employers must assist students with their reporting requirements and attest that they have sufficient resources to provide the training, that they will not use students to replace U.S. workers, and that the opportunity helps students reach their training objectives. In addition, the terms and conditions of the OPT employment, including salary and benefits, must be commensurate with the employer’s similarly situated U.S. workers.
 
Finally, the rule authorizes DHS to conduct site visits to ensure that STEM OPT employers are meeting the program requirements. Generally, these site visits will be announced in advance.
 
We will provide more details about some of these new provisions over the next few weeks. Meanwhile, please contact us with any questions.