24-Month STEM OPT Effective from May 10, 2016

The finalized STEM optional practical training (OPT) rule goes into effect on May 10, 2016. The revised regulations allow for a 24-month OPT extension for students with qualifying STEM degrees.

Background: Replaces Vacated STEM OPT Regulations

As explained in the MurthyDotCom NewsBrief, STEM OPT Could End in February 2016 (24.Aug.2015), the 17-month STEM OPT regulations were vacated by a federal court. The court delayed the effective date of its order to allow the U.S. Department of Homeland Security (DHS) time to finalize new STEM OPT regulations as a replacement. The DHS published the final version of the new STEM OPT rule on March 9, 2016.

STEM OPT Extension Increases from 17 to 24 Months

The new STEM OPT regulations increase the duration of STEM OPT from 17-months to 24-months. The standard 12-month OPT period is unchanged. With the increased duration of STEM OPT, the DHS saw fit to also increase the permitted period of unemployment. Students will still be limited to a maximum of 90 days of unemployment during the initial 12-month OPT. They will, however, be allowed an additional 60 days of unemployment during the extended STEM OPT period. Unemployment days not used during the 12-month OPT become available for use during the STEM OPT, giving a cumulative total of 150 days over the combined initial and STEM OPT extension periods.

General Requirements: STEM Degree and Accreditation

Those seeking a STEM OPT extension under the new regulations must have a qualifying STEM degree from an accredited school. The school’s accreditation must be issued by an agency recognized by the U.S. Department of Education. These requirements must be met at the time the STEM OPT application is filed.

Employer’s Training Plan Prior to STEM OPT

One significant change to the STEM OPT program is a newly created requirement for an employer’s formal training program. Employers must submit a written mentoring and training program (MTP) and make related attestations. The MTP and attestations are contained in form I-983.

The MTP requires detailed information including: the correlation between the degree and the training; training goals; specific skills and knowledge to be imparted, and how the goals will be achieved. The employer must also set out the evaluation process and the manner in which the STEM OPT employee will be supervised. A designated school official (DSO) from the foreign national student’s school must then review the I-983 and verify it is properly completed before the requisite I-20 can be issued to the student. Thus, it is vital to be mindful of timing considerations with this new part of the STEM OPT process.

Monitoring and Reporting Requirements

The new rules impose a number of monitoring and reporting requirements:

• Employers are obligated to report student employment termination / departure to the DSO within five business days.

• Employers are required to inform the DSO promptly of any material changes to the MTP, including a reduction in hours or a reduction in compensation. A new I-983 form is required within 10 days of such material change.

• A new I-983 is required within ten days of a change of STEM OPT employer.

• Students must continue to submit validity reports every six months while on STEM OPT. These include the student’s name, address, employer name / address, and status of the OPT experience.

• Students must report changes to the validity report information, including a loss of employment within ten days.

• The “evaluation of student progress” section of the I-983 must be completed within twelve months of the OPT start date. This requires details regarding the implementation of the training plan and an evaluation of the skills and knowledge acquired. A final assessment is required at the completion of the STEM OPT program.

• DHS may conduct site visits to verify compliance with the MTP.

Type of Employment: No Self-Employment; Must be Paid

STEM OPT employment must be paid employment. Unpaid or voluntary positions, even if related to the degree program, are not sufficient for the STEM OPT period.

Self-employment is not an option under the new STEM OPT provisions. While the regulations do not specifically prohibit self-employment, the DHS interpretations of the I-983 requirements prohibit self-employment. The DHS notes, “The rule also requires that a student must have a bona fide employer-employee relationship with an employer to obtain a STEM OPT extension … [S]tudents may be employed by start-up businesses, but … the student may not provide employer attestations on his or her own behalf.”

Multiple STEM OPT Eligibility Provisions

Under the 17-month OPT provisions, students were limited to one STEM OPT period. Under the new regulations, some students will be able to avail themselves of this benefit twice. This option requires that the student complete a second, higher level, qualifying STEM degree. For instance, a student could complete a qualifying bachelor’s level STEM degree and receive a 12-month OPT followed by a 24-month STEM OPT extension. Thereafter, the student could complete a qualifying STEM master’s program and, again, qualify for 12-month OPT followed by a 24-month STEM OPT.

Prior Degree as Basis for STEM OPT

Under the 17-month STEM OPT regulations, the STEM OPT could be based only upon the student’s most recent degree (i.e. the degree that resulted in the grant of the 12-month OPT). Under the new regulations, however, STEM OPT is available to a non-STEM graduate with 12-month OPT if the person completed a qualifying STEM degree in the United States within the past 10 years. Further, to qualify for this benefit, the position must relate to the STEM degree.

Conclusion

The 24-month STEM OPT provisions bring significant changes. Employers who wish to have access to workers on STEM OPT extensions should carefully review the training program requirements well in advance. Employers should also review the reporting requirements and create systems for compliance.

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