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STEM OPT: An Employer's Perspective

By James A. Bach, Esq.

Copyright 2016

 

Optional Practical Training (OPT) for foreign graduates of US colleges and universities has been available for many decades. Essentially, OPT allows students in F-1 status to work for any employer for a period of 12 months, as long as the employment is related to their field of study. The student applies for OPT within 90 days before graduation or 60 days after graduation. Upon approval of the application, the student is given an Employment Authorization Document (EAD), a wallet-sized card that includes the graduate's photo and the dates that he or she is authorized to work.

The initial OPT application process is handled entirely by the student and the Designated School Official (DSO) at the college or university and there is no role for the employer other than to inspect the EAD for the purpose of completing the I-9 (although occasionally the DSO will request a letter from the employer that confirms that the employment is related to the student's major field of study). There is no requirement that the employer enroll in E-Verify.

In 2008, the USCIS issued a regulation that provided for extension of the OPT period for an additional 17 months, for graduates of US colleges and universities in "STEM" fields (Science, Technology, Engineering and Math). (A list of the STEM majors can be found at https://www.ice.gov/sites/default/files/documents/Document/2014/stem-list.pdf.) The basic 12-month OPT therefore could be extended to a total of 29 months under the 2008 rule.

As with the 12-month OPT, the STEM extension required little action by the employer, other than enrollment in E-Verify. Instructions for E-Verify enrollment can be found at https://www.uscis.gov/e-verify/employers. The STEM extension rule also required employers to notify the college or university within two days of termination of the employment.

An anti-immigrant group sued the US government, claiming 1) it did not have the authority to grant STEM OPT (since there was no Act of Congress), and 2) the regulation was procedurally defective. In 2015, the US District Court in Washington DC decided that the President did have authority to grant STEM OPT, but the regulation was not properly issued (because there was no opportunity for the public to comment on the regulation before it was finalized). A new STEM OPT regulation, was issued on March 11, 2016, to go into effect on May 10, 2016.

The new STEM OPT regulation provides for 24 months of STEM OPT extension, enabling a maximum period of OPT for three years. The three years of OPT are particularly welcome to STEM students and their employers because it gives them three chances (and in some cases four chances) to petition for H-1B status in the annual H-1B lottery.

The employer still must be enrolled in E-Verify, but unlike the previous OPT rules, the STEM-extension rules impose significant additional requirements on employers, including completion of a new form, I-983. Once published, the new form will be available at https://www.uscis.gov/i-983 (an advance copy can be found at https://www.ice.gov/sites/default/files/documents/Document/2016/I-983.pdf and instructions at https://www.ice.gov/sites/default/files/documents/Document/2016/I-983-instructions.pdf.

Form I-983 requires that the employer attest to the following:

1) the employer has sufficient resources and personnel available to provide appropriate training in connection with the employment;

2) the STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker; and

3) the opportunity assists the student in attaining his or her training goals.

Form I-983 also requires the employer to describe a comprehensive training plan. The training plan must:

1) identify goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student;

2) explain how those goals will be achieved through the employment,

3) describe a performance evaluation process,

4) describe methods of oversight and supervision, and

5) explain how the training is directly related to the studentís STEM degree.

Employers may rely on their existing training programs or policies to satisfy the requirements relating to performance evaluation and oversight and supervision.

Finally, the employer must attest that the employment opportunity -- including duties, hours and compensationóis commensurate with those provided to the employerís similarly situated U.S. workers (i.e., U.S. workers performing similar duties and with similar educational backgrounds). Work duties must be designed to assist the student with continued learning and be set at a minimum of 20 hours per week. If the employer does not employ and has not recently employed more than two similarly situated U.S. workers, the employer must instead ensure that the terms and conditions of a STEM practical training opportunity are commensurate with those for similarly situated U.S. workers employed by other employers of analogous size and industry and in the same geographic area of employment. This compensation requirement is similar to the requirement of payment of a "required wage" in connection with an H-1B petition. The compensation must be reported on the I-983, and the employer is responsible for reporting any later change in compensation.

The degree that forms the basis for the STEM extension need not be the student's most recent degree. Let's assume, for example, that a student obtained a U.S. Bachelor's degree in Computer Science (a STEM degree), worked for three years in OPT status (including the 2-year STEM extension), and then went back to school to get an MBA (not a STEM degree). Upon graduating with the MBA the student can get an additional three years of OPT employment (one year basic OPT and two years of STEM extension) based on the Computer Science degree. In that case, the STEM OPT employment must be related to the degree on which it is based (in our example, Computer Science). Accordingly, employment as a Software Product Manager would qualify, but employment in marketing (for a product not related to software) would not qualify.

 

 

*The information contained in this article should not be used as a basis for taking action or for failing to act. Instead, it is intended to educate the firmís clients and members of the public generally, and to provide a background for directing case strategy in collaboration with a competent and experienced immigration attorney. No attorney / client relationship is created by the information provided, and even the firmís existing clients should not take any action unless they are instructed to do so by an attorney. Information on this site may be outdated or erroneous, and you should seek the advice of an attorney to determine current law or policy.

 

 

To obtain representation call (415) 248-3100 or send an email to jbach@immilaw.com.

 

Mr. Bach is Certified as a Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization.

 

 

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