New STEM OPT Proposed Regulation Published

The rule proposed by the U.S. Department of Homeland Security (DHS) to revise and reauthorize the STEM optional practical training (OPT) program was published in the federal register on October 19, 2015. The proposed rule would increase the duration of STEM OPT extensions to 24 months and add a number of oversight provisions to the program. The DHS will accept comments from the public on the proposed rule through November 18, 2015.

Background: Court Vacates STEM OPT Regulation

The STEM OPT regulation was vacated by a U.S. district court, effective February 12, 2016. This proposed rule is intended to reauthorize the program before the February end date, as well as add a number of enhancements. More details on the federal lawsuit that vacated the existing STEM OPT program are available in the MurthyDotCom NewsBrief, STEM OPT Could End in February 2016.

24-Months STEM Extension and 150 Days of Unemployment

If the STEM OPT regulation is implemented as proposed, it would make the following changes to the program:

• STEM OPT duration would increase from 17 months to 24 months.
• STEM OPT would be available only through accredited U.S. institutions of higher education.
• The maximum period of unemployment would increase for those with STEM OPT; students would be allowed up to 90 days of unemployment during OPT, plus an additional 60 days during the STEM OPT period, for a cumulative total of 150 days.

STEM OPT Extension Eligibility

The proposed regulation includes some changes with respect to obtaining STEM OPT benefits more than once, based upon completion of multiple U.S. degrees:

• A foreign national student would be limited to a lifetime maximum of two STEM OPT periods. Eligibility for a second STEM OPT period would require completion of a second, qualifying degree at a higher level (e.g., bachelor’s degree followed by completion of a master’s degree).
• In some situations, a student who is on OPT would be able to use a previously obtained degree to qualify for a STEM OPT extension. However, this option is only available if the student did not use STEM OPT after they completed the qualifying degree. To qualify, the STEM degree would have to be on the STEM Designated Degree Program list at the time the student’s application is filed and must have been earned from an accredited university. Further, “… the student’s practical training opportunity must be directly related to the previously obtained STEM degree,” and “… the degree must have been conferred within the 10 years preceding the student’s application date.”

Example: Raj completes a bachelor’s degree from an accredited U.S. university in business statistics, which is a qualifying STEM degree. He does not apply for STEM OPT after completion of this degree. He then enrolls in a master’s degree program from an accredited school, where he earns a master’s of business administration, which is not a STEM degree. After working on OPT for 12 months following the master’s degree, if Raj has a job offer directly related to business statistics, he may still qualify for a 24-month STEM OPT extension.

Requirements for U.S. Employers

Along with some new benefits, there are new restrictions and workforce protections included in the proposed STEM OPT regulation:

• The employer would be required to work with the student to develop a formalized mentoring and training plan (MTP) for submission to the student’s designated school official (DSO) before the DSO would be able to recommend the STEM OPT extension. The MTP “must explain how the employment will provide a work-based learning opportunity for the student by stating the specific goals of the STEM practical training opportunity and describing how those goals will be achieved; detailing the knowledge, skills, or techniques to be imparted to the student; explaining how the mentorship and training is directly related to the student’s qualifying STEM degree; and describing the methods of performance evaluation and the frequency of supervision.”
• The employer would be required to attest to a number of provisions designed to protect both U.S. workers and the foreign national employee/s on STEM OPT, including:

• The duties, hours, and stated offered wages are commensurate with those of U.S. workers similarly situated.

• No U.S. worker was laid off or terminated as a result of the intended hire of an F-1 student.

• Within 48 hours of the STEM OPT worker being terminated, the employer will notify the appropriate designated school official (DSO).

As with the existing STEM OPT program, this proposed rule would require the employer to be enrolled in the E-Verify program.

Current STEM OPT Holders and Applicants

Since the STEM OPT period would increase under the proposed regulation, students holding 17-month STEM OPT extensions would be able to request the additional STEM OPT time balance, up to 120 days prior to the end of their respective 17-month STEM OPT periods. In order to do so, however, all of the requirements for STEM OPT under the new rule would have to be met.

If New Rule is Not Enacted Before February 12th Deadline

As explained in the proposed rule, the “DHS is making every effort to have a final rule take effect prior to February 13, 2016.” If a new rule does not go into effect by then, the DHS will “lack clear regulatory authority” to adjudicate any new STEM OPT applications unless and until such a rule is finalized. If that occurs, the DHS “… will evaluate options to address pending applications, such as returning these applications and requiring refiling upon completion of a final rule.”

If a new STEM OPT rule is not enacted in time, it is not entirely clear what will happen to those who already have STEM OPT extension approvals, or who have such an extension approved by February 12, 2016. However, it appears that these individuals would not have their benefits revoked or invalidated.

Conclusion

There is certainly reason to be optimistic that a STEM OPT rule will be put in place prior to the end-date of the current program. Stakeholders are encouraged to submit comments to the DHS regarding this proposed rule. MurthyDotCom will continue to closely track this developing story and post updates as new information becomes available.

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