An Employer's Perspective
A. Bach, Esq.
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
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
The STEM extension rule also required employers to notify
the college or university within two days of termination of
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
(an advance copy can be found at
and instructions at
Form I-983 requires that the employer attest to the following:
employer has sufficient resources and personnel available to
provide appropriate training in connection with the
STEM OPT student will not replace a full- or part-time,
temporary or permanent U.S. worker; and
opportunity assists the student in attaining his or her
Form I-983 also requires the employer to describe a comprehensive
training plan. The training plan must:
identify goals for the STEM practical training opportunity,
including specific knowledge, skills, or techniques that
will be imparted to the student;
how those goals will be achieved through the employment,
describe a performance evaluation process,
describe methods of oversight and supervision, and
how the training is directly related to the studentís STEM
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
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
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.
representation call (415) 248-3100 or send an email to
Mr. Bach is
Certified as a Specialist in Immigration and Nationality Law
by the California State Bar Board of Legal Specialization.