DHS Publishes STEM OPT Extension Proposed Rule for F-1 Students

The U.S. Department of Homeland Security (DHS) has published a proposed rule in the Federal Register relating to Optional Practical Training extensions for F-1 students with science, technology, engineering and math degrees (STEM OPT extension). DHS has issued this notice in response to a recent federal district court order vacating the previous STEM OPT extension rule that has been in place since 2008. Though the federal court vacated the existing STEM OPT rule, its provisions remain in effect until February 12, 2016 so that DHS may promulgate a new rule.

The proposed rule would make the following changes to the STEM OPT extension provisions:

• Increase the extension period to 24 months from the current 17 months
• Define STEM fields according to the U.S. Department of Education’s Classification of Instructional Programs (“CIP”) grouping of mathematics, natural sciences (including physical and biological/agricultural sciences), engineering/engineering technologies, and computer/information sciences, as well as related fields (DHS may revise its Designated Degree Program list based on changes in the CIP and proposes a process for public notice when the list is updated)
• Introduce formal mentoring and training requirements for employers. The employer and student would be required to prepare a customized mentoring and training program and the student would need to submit it to the Designated School Official (DSO) before the DSO could recommend a STEM OPT extension
• Require employers to employ STEM OPT F-1 students on terms and conditions that are commensurate with those of similarly situated U.S. workers and attest that no U.S. workers will be laid off or furloughed as a result of STEM OPT workers; the student’s compensation would need to be reported on the mentoring and training program submitted to the DSO
• Designate that Immigration and Customs Enforcement (ICE) may conduct on-site reviews of employers to ensure compliance with the program
• Increase the number of days an F-1 student can be unemployed during the 24-month STEM OPT period from 30 days to 60 days; if the student’s employment is terminated, the employer would be required to notify the student’s DSO within 48 hours
• Permit students to use a previously issued STEM degree from an accredited school to request the 24-month STEM OPT extension, even if they are currently engaging in OPT that has been authorized based on their study towards a different degree; the students must develop and utilize the STEM skills from their prior STEM degree during the extended OPT period

The proposed rule would retain certain requirements of the 2008 version, such as:

• Employer registration in E-Verify in order to employ F-1 students with STEM OPT extensions
• H-1B “cap gap” relief for F-1 students who are the beneficiaries of a timely filed H-1B petition, by permitting extensions of their F-1 status and current employment authorization up to October 1 of the fiscal year in which the H-1B visa is requested

The proposed rule is open to public comments for 30 days, until November 18, 2015. It should be noted that none of the proposed changes outlined above will take effect unless and until a final rule with these provisions is adopted. Gibney will continue to monitor the status of this matter, and provide updates as they become available. If you have any questions concerning this alert, please contact your designated Gibney representative or email info@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.