Proposed STEM OPT Rule Expands Scope and Validity; Adds Employer Requirements

Many employers and F-1 STEM students have been anxiously expecting a draft of the proposed STEM OPT extension rule which had to be rushed as a result of the August 2015 District Court decision invalidating the existing 2008 STEM OPT rule.    USCIS has published the full text of the proposed OPT STEM extension rule and has opened the required 30-day public comment period.    We have read and analyzed the rule for our clients and readers.

Background of the STEM OPT Extension Rule and the Need for a New Rule

The sole reason requiring USCIS to redo the STEM OPT extension rule was the August 12, 2015 U.S. District Court for the District of Columbia decision to vacated the 2008 STEM OPT rule.   The Court’s rationale was that USCIS did not follow the normal rulemaking process which includes public comment period.   The Court ordered that the rule remain valid until February 12, 2016 in order to avoid substantial hardship to employers and F-1 STEM OPT workers and to allow DHS time to engage in a proper notice-and-comment rulemaking process.

In response, and a couple of months later, USCIS has released the full text and regulatory analysis of the proposed STEM OPT extension replacement rule (see Federal Register) .

Summary of Proposed STEM OPT Extension Rule

USCIS appears to be using this opportunity to revise the STEM OPT extension rule in order to expand the validity and scope of the STEM OPT extension rule and at the same time to add certain requirements on STEM OPT holders and their employers in order to ensure adequate mentoring and training is provided to STEM OPT holders, together with protecting the US labor market from abuse.   Here are the major points.

• Validity and Scope. The proposed STEM OPT extension period is being extended from 17 months to 24 months.  This makes for a total of 36 months of OPT and STEM OPT employment.     Current 17-month STEM OPT holders would be able to apply to “recapture” the additional 7 months of STEM OPT time.    The permitted unemployment period during the combined OPT and STEM OPT period is extended to a total of 150 days (up from 120 before).
• Preserving Eligibility.  The STEM OPT extension will be available again during subsequent higher STEM degree completion.    The STEM degree must be obtained by a US accredited institution.     Also, a STEM OPT can be obtained based on a previous STEM degree even if it was followed by an OPT based on a non-STEM degree.
• Degree List.  The eligible STEM degree list will be expanded and will be designed to match the Department of Education’s National Center for Education Statistics (NCES) definition.
• Employer Requirements.   The proposed STEM OPT rule continues to require E-Verify participation by the employer.   The employer will also need to prepare a Mentoring and Training Plan (MTP) with the student to document how (and by whom) the student would be mentored, define compensation and specific training goals.   Employer will have to make available sufficient time/resources to supervise and mentor the student.   Employer will attest that salary will be competitive and no US workers will be displaced.      The MTP will have to be done in advance – to be submitted to the DSO for STEM OPT authorization and to USCIS for STEM OPT application.   The employer will also be required to report within 48 hours of the student leaves.    Also, the employer will be subject to a random USCIS site visit to ensure compliance.

Timeline for Next Steps and Rulemaking Process – When Would This Rule Become Effective?

Please note that at this time this is only the proposed STEM OPT rule.   As part of the rulemaking process, this rule draft is subject to a 30-day public comment period.    This comment period is scheduled to end on November 18, 2015 (see the rule text for information on how you can submit comments to this proposed rule – anyone can do so).    Once the comment period closes, DHS would review the comments and either revise the rule in response to concerns or seek to publish a final rule.     The final rule, once published, will have a future effective date which, we hope, will be before February 12, 2015 when the current rule is set to be invalidated.

Please stay tuned to our website or newsletter for more updates on the timeline and the effective date for this rule over the next month or two.

Conclusion

We welcome DHS’s publication of the proposed rule and we believe that many eligible STEM OPT students would benefit from the extended validity period.    We caution, however, that there are additional compliance requirements, including the Mentoring and Training Plan requirement.   Our office will monitor this process over the next weeks and provide additional updates, including estimates and actual dates of implementation of the new STEM OPT extension rule.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.