New F-1 STEM OPT Program Requirements for Employers

The Department of Homeland Security (DHS) has made critical changes to the STEM optional practical training (OPT) program, which will take effect for all F-1 applications for STEM extension approved on or after May 10, 2016.

Aside from lengthening the extension period from 17 months to 24 months, the revisions to the OPT program place new, important requirements for F-1 OPT employers, students, and schools.  The standard 12-month OPT program will remain unchanged.  F-1 students granted a 17-month STEM OPT extension before May 10, 2016 will remain subject to the prior STEM rules unless they file for an additional seven months of OPT under the new rules.

STEM OPT Training Plan. The new regulations require F-1 students and employers to complete a formal training plan Form I-983, which must be submitted to the student’s Designated School Official (DSO). The STEM OPT Training Plan must detail how the proposed employment will provide employment-based learning opportunities. Specifically, the plan must: 

• Set specific goals for the training opportunity, including the knowledge, skills, and or techniques which will be available to the student in the proposed employment; 
• Explain how the employer’s organization will help the student meet these goals; 
• Detail how the employment opportunity relates to the student’s qualifying STEM degree; 
• Explain the employer’s methods of supervising and evaluating the student’s success in their employment; and 
• Set the student’s compensation, which must be commensurate with the payment of similarly situated U.S. workers. 

Obligation to Amend STEM OPT Training Plan. Employers have an obligation to notify the DSO within 10 days of any material change to the STEM OPT Training Plan, originally submitted on Form I-983. Mterial changes include, but are not limited to:

• A significant decrease in the F-1’s work hours per week;
• Any decrease in the F-1’s hours worked below 20 hours per week (other than due to time off pursuant to your organization’s leave policy);
• Any reduction in the F-1’s compensation (other than due to a reduction in work hours);
• A change in your organization’s EIN number due to a corporate restructuring; and
• Any change from the existing plan that would render the training plan or the employer’s or F-1’s attestations inaccurate.

Additional Reporting Obligations. Aside from the obligations detailed above, relating to the STEM OPT Training Plan, employers have additional reporting requirements including:

• Requirement to report the hiring  a new employee in F-1 STEM OPT. When an F-1 takes up new employment during the STEM OPT period, the F-1 and the new employer must complete a training plan and submit it to the DSO within 10 days after the employment start date.
• Requirement to report the termination of employment of an employee in F-1 STEM OPT. An employer must report to the DSO within five business days if an F-1’s employment is terminated during the STEM OPT employment or the F-1 fails to appear for work as expected for more than five days.   (Vacations, sick days, and leaves under an employer’s normal policies do not trigger this reporting requirement.)  If the F-1 remains on a 17-month STEM OPT extension that will not be extended further, termination must be reported to the DSO within 48 hours.

Wage Attestation Requirement. There is no specific wage requirement for F-1s during the STEM OPT period.  However, the STEM OPT employer must attest that the F-1’s compensation is commensurate with that provided to U.S. employees who perform similar duties and responsibilities, and whose educational background, experience, and skill set are similar to that of the STEM OPT student.

Non-Replacement Attestation. The employer must attest that it will not replace a part-time, full-time, temporary or permanent U.S. worker with an F-1 on STEM OPT.   DHS defines “replacement” as the loss of existing or previous employment.

Evaluation of F-1 Employee’s Performance. The F-1 worker must complete a self-evaluation on Form I-983, and the employer must review it for accuracy and sign it.  Evaluations must be performed within the first 12 months of the STEM OPT employment and again at the conclusion of STEM OPT.  Evaluations are due to the DSO within 10 days after the close of the evaluation period.

Employers may incorporate any existing evaluation processes, however  the purpose of an internal performance evaluation is different from that of a STEM OPT evaluation.  An internal performance evaluation focuses on how well an employee is performing the duties of the job and is often used to determine salary increases and promotions.  A STEM OPT evaluation, on the other hand, focuses on the F-1’s progress in meeting the goals outlined in the training plan.  It is not intended to subjectively evaluate how well the F-1 performs the duties.

Employers Subject to Periodic Onsite Inspections by DHS.  Under the new rule, the Department of Homeland Security has the authority to conduct on-site reviews to verify whether employers and F-1 students are meeting STEM OPT program requirements and attestations. It is anticipated that site visits will be conducted by officers of U.S. Immigration and Customs Enforcement (ICE).  Site visits may be in person, or via email or telephone requests.

Site visits may include interviews with the F-1 student and his or her supervisor, a review of the training plan, and a review of the documentation the employer used to assess the wages of similarly situated U.S. workers. However, if the ICE officer observes violations of other immigration-related rules, such violations may be referred for further action.

In general, ICE is expected to provide the employer with 48 hours’ notice in advance of a site visit, but the agency may make unannounced visits if there is a complaint or other evidence of noncompliance with STEM OPT program rules.

If you would like further information about specific case scenarios or situations, please call our office or email us at ckuck@immigration.net to speak to one of experienced immigration attorneys.  

APPLICATION PROCESS UNDER THE NEW REGULATIONS

USCIS will begin accepting applications for 24-month STEM OPT extensions on May 10, 2016. The following steps are required:

• The employer and the F-1 prepare and execute a training plan on Form I-983. 
• The F-1 submits the training plan to his or her DSO, who will confirm that the STEM degree, employer and employment opportunity meet the program requirements per the I-983 training plan.
• The F-1 obtains a newly endorsed I-20 from the DSO on or after May 10, recommending a
• 24-month STEM extension.
• The EAD application is filed on Form I-765 on or after May 10, within 60 days of the DSO’s endorsement and no more than 90 days before the 12-month EAD expires.

F-1 students benefit from an automatic 180-day extension of work authorization if their initial 12- month OPT EAD expires while the STEM OPT application is pending.

FREQUENTLY ASKED QUESTIONS:

1. Do the new F-1 regulations apply to applications filed before May 10, but still pending after May 10?

Yes. F-1 applications for STEM OPT, filed prior to May 10 and still pending after May 10, will subject the employer and student to the new requirements.

2. Are there any changes to the E-Verify requirement for STEM OPT employers?

As has long been the case, an employer must be registered and participating in E-Verify at the worksite where the  F-1 will  work during the  STEM  OPT period. The new regulation makes  no changes to this requirement.

3. Can F-1 Students previously granted 17-month OPT extensions now seek more OPT time under the new regulations?

Certain F-1 students will be eligible to apply for an additional 7 months of STEM OPT, provided that they meet the requirements of the new rule:

• The F-1 must have at least 150 days remaining on the 17-month STEM OPT EAD on the day USCIS receives the application for a 7-month extension.
• The employer and the F-1 must comply with the new rules, including having an approved training plan (see Questions 13-15) and a new I-20 endorsed for a STEM OPT extension by the student’s DSO.
• The F-1 must file for a 7-month extension on Form I-765 between May 10, 2016 and August 8, 2016.  Applications for a 7-month extension will not be accepted after August 8.

4. What types of employment are permissible during the STEM OPT period?

The 24-month STEM OPT period is limited to certain employers and employment opportunities, as follows:

• STEM OPT employer must be enrolled in and using the E-Verify program at the STEM OPT worksite.
• A STEM OPT employer must have an Employment Identification Number (EIN).
• The employment opportunity must be directly related to the student’s qualifying STEM degree.
• There  must  be  an  employer-employee  relationship between  the  employer  and  the  F-1 student.  During the STEM OPT period, employment for a staffing agency and other labor- for-hire arrangement will not qualify.
• Volunteer employment does not qualify.
• An F-1 may not work concurrently for multiple employers during the STEM OPT period.

5. Do employers incur new obligations for current F-1 STEM OPT employees, approved under the prior regulations?

No. The new regulations apply only to F-1 OPT extensions, granted on or after May 10, 2016. 

6. Can I hire an employee with F-1 STEM OPT currently employed elsewhere?

Yes. An employee with F-1 on STEM OPT may change employers, so long as the new employment satisfies the new program requirements. A new STEM OPT Training Plan must be submitted to the student’s DSO within 10 days of the transfer start date. 

7. If the F-1 STEM OPT transferee employee holds OPT under the previous regulations, is the transfer subject to the new regulations?

Yes. All approvals of STEM OPT will be subject to the new regulations, discussed above. 

8. Does the F-1 employee have to be continuously employed to maintain status during the STEM OPT period?

No, an F-1 is not required to be continuously employed in order to maintain lawful status, but there are strict limits on unemployment during OPT.

In the initial 12-month period of OPT available to all F-1 graduates, no more than 90 days of unemployment is permitted. STEM graduates who obtain a 17-month extension of OPT will be granted an additional 30 days of unemployment during the STEM extension for an aggregate of 120 days.  Under the new rule, STEM graduates who obtain a 24-month extension of OPT will be granted an additional 60 days of unemployment, for an aggregate of 150 days. F-1s who apply for a 7-month extension of 17-month STEM OPT cannot exceed 120 days of unemployment while their EAD is pending; once it is approved, the unemployment limit increases to 150 days.

9. Is there a minimum amount of time the F-1 student must work during STEM OPT to maintain status?

F-1s on a STEM OPT extension must work at least 20 hours per week, except when they take leave under their employer’s standard leave policy.

10. What is the process for F-1 students on a 17-month STEM OPT extension who will apply for an additional 7 months of OPT?   Are they authorized to work while the request is being adjudicated?

USCIS will begin accepting applications for 7-month extensions of STEM OPT on May 10, 2016.  The following steps must be taken:

• The F-1 and the employer prepare and execute a training plan on Form I-983.
• The F-1 submits the completed training plan to the DSO, who will confirm that the degree and the I-983 training plan meet program requirements.
• On or after May 10, the F-1 obtains a newly endorsed I-20 from the DSO recommending a 7- month STEM extension.   DSOs are not authorized to provide a STEM OPT endorsement under the new rule until May 10.
• The EAD application is filed between May 10 and August 8, 2016.  The application must be submitted to USCIS within 60 days of the DSO’s endorsement.  As noted above, the F-1 must have at least 150 days remaining on the current EAD as of the date the application is received by USCIS

F-1 students seeking an additional 7 months of STEM OPT will not benefit from an automatic 180- day extension of work authorization following the expiration of their current EAD.   The new EAD must arrive before the old EAD expires, or else the F-1 will have a gap in work authorization.