Preparing for the New STEM OPT Regulations: May 10 Is Coming! May 10 Is Coming!

[caption id="" align="alignright" width="98"] Jang Hyuk Im[/caption]

Many high-tech companies are recovering from the recent April mad-dash to file H-1B cap petitions allowing for the continued employment of their foreign student graduate population.  Since the H-1B cap season closed abruptly following the first week of April, and USCIS has completed its computer-generated lottery determining which of the 200,000-plus petitions submitted have been accepted for the limited 85,000 H-1B cap slots available, employers now must turn their attention immediately to define viable alternative visa options for those foreign students not fortunate to be selected.

In the past, one of the alternatives for employers with F-1 work-authorized students who possessed Science, Technology, Engineering or Math degrees (so-called “STEM” degrees) not chosen for the H-1B cap lottery, was the ability for that student to file for the 17 month STEM extension of their Optional Practical Training (OPT) work authorization.  Until recently, the only requirements to secure this extension were:

1. the student received a STEM degree from an accredited U.S. college or university that related to their employment; and
2. their employer was registered with E-Verify, a US Department of Homeland Security-sponsored online employment verification database that is voluntary for employers to join.

This simple STEM OPT work authorization extension process changes dramatically on May 10, 2016, when the Department of Homeland Security’s (DHS’s) new STEM OPT regulations are scheduled to take effect.  These changes resulted from last year’s August 2015 Federal Court ruling that found procedural irregularities in the manner in which the prior STEM OPT rules had been promulgated.

Beginning May 10, 2016, any F-1 student wishing to apply for his/her STEM OPT extension must:

1. have received their STEM degree from an accredited college/university that is Student and Exchange Visitor Program-certified (SEVIS registered);
2. previously have been granted regular OPT work authorization that remains effective;
3. apply for the I-765 employment authorization extension up to 90 days before the student’s current regular OPT period expires;
4. apply for the I-765 employment authorization extension within 60 days after the student’s Designated School Official’s (DSO) enters into SEVIS the DSO’s recommendation to extend the OPT; and
5. make certain their employer is registered in and actually using E-Verify.

To obtain the DSO’s OPT extension recommendation, the Student and his/her employer must complete and submit to the DSO the newly-required Form I-983 Formal Training Plan for STEM OPT Students.  The Form I-983 is a new application and requires both the student and employer to satisfy several never-before-seen, but now mandatory training and verification requirements.

Specifically, the Form I-983 requires the employer to certify under penalty of perjury that:

1. it provides the OPT extension job opportunity commensurate with those of the employer’s similarly situated US workers in duties, hours, and compensation;
2. it possesses sufficient resources and trained personnel to provide the appropriate training;
3. the student will not replace any US worker;
4. the program will assist the student in the student’s training objectives;
5. it agrees to provide notification to the DSO regarding any material changes (i.e. pay, work hours, corporate changes, terminations, etc.);
6. the employer and student agrees to prepare a detailed and goal-oriented formal training plan measuring the training achievements reached by the student related to their STEM degree; and
7. the employer will provide annual reviews of the students’ formal training plan confirming the achievements reached under the program.

The next several months are going to be a brave new world regarding how to complete and submit the new Form I-983 Formal Training Plan for STEM OPT Students.  While one may consult  the recently established DHS website, that site provides only generalities regarding how to complete the I-983 Form.  Unfortunately it provides no specific samples or details regarding what is viewed as a proper formal training plan allowing for DSO certification.  The conjecture is that it may take several exchanges between the student, his/her DSO, and the employer before we can truly get a feel for how to properly prepare and complete the formal training plan allowing for DSO recommendation.

But the news is not all bad!  The new STEM OPT regulation also provides additional benefits.  They include:

1. an increased work authorization period from the original 17 months to 24 months;
2. allowing those currently under the already approved 17 month STEM extension to remain employed for the duration of that 17 month EAD extension and be allowed to file for an additional 7 month extension (provided several additional requirements are met—please speak to an EBG attorney regarding those details);
3. extending the period of permissible unemployment to 150 days during the combined 36 months of regular and STEM OPT work-authorized period;
4. permitting the student to remain employed for up to 180 days while the STEM OPT extension is pending if their current employment authorization expires;
5. allowing students currently on a regular 12 month OPT period based on non-STEM degrees to be  the eligible to file for the 24 month STEM OPT extension if that student previously received a US STEM degree;
6. allowing for a second 24 month STEM OPT application if the second STEM degree was received at a higher educational level then the first STEM degree.

Separately, the newly issued STEM OPT regulations has also added additional reporting and audit sections requiring the student and employer continually be on their toes in maintaining the STEM OPT training program.  These include:

1. subjecting the employer to potential USCIS onsite inspections, including random inspections conducted without prior notice;
2. requiring the student to complete six month and annual reporting to the DSO;
3. requiring the student and employer to prepare a formal training plan for submission to and approval by the DSO with continued follow-up thereafter confirming the plan in being followed; and
4. requiring the employer to report material changes to an already-approved training plan.

In summary, the newly-issued STEM OPT regulation gives many US high-tech employers an alternative to allow for the continued employment of their US STEM-degreed foreign national workers.  But, like any government benefit, this comes with a higher bureaucratic cost.