Increased STEM Extension to 24 Months. Foreign students generally receive 12 months. STEM students will now receive a 24-month extension, for a total of 36 months.

Multiple STEM Extensions. If a student has a previous STEM degree and has not used the additional work authorization, the student can use a previous STEM degree to get the extra 24 months. Additionally, if the student has multiple STEM degrees, the student may be eligible for as many as two separate STEM extensions. If the STEM student has already used a STEM extension, an extension based on that degree is not available, however.

Formal Training Plan. The new rule requires employers to create a formal training plan. If the employer already has a training plan in place, it is allowed to use that plan. Employers will now be required to complete Form I-983, Training Form for STEM OPT Students.

Student Reporting Requirements. The new rule requires students and employers to confirm changes in the student’s biographical data, such as residential and employment information, as well as changes in employment, such as a student’s departure or material changes or deviations from the formal training plan. In addition, annually the student must prepare a self-evaluation report for the Designated School Official on the progress of the training.

Unemployment Limitation Extended. The new rule extends unemployment time from 120 to 150 days for STEM students.

Employer Site Visits. DHS will be conducting discretionary site visits. DHS will normally provide 48 hours of notice. If there has been a complaint or evidence of noncompliance with the STEM OPT regulations, DHS can conduct a site visit without notice.

Employer Attestations. To protect the legitimacy of the program and to prevent harm to the U.S. workforce, the new rule requires an employer to attest that:

1) It has sufficient resources to support STEM training

2) The student worker will not replace a U.S. worker

3) The opportunity will help the student in his or her training objectives.

What Has Not Changed.

• Employers hiring STEM students must enroll in E-Verify.
• The “cap gap” extension is automatically granted during the pendency of an H-1B petition.

If you have student workers and have questions regarding the applicability of the new rule, call your attorney at Rose Immigration Law Firm, PLC.

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By way of background, in 2008, the Department of Homeland Security (DHS) issued a rule known as STEM OPT, granting F-1 students 17 additional months of work authorization, for a total of 29 months. This benefit is available only to students working in STEM occupations for employers that utilize E-Verify.  In issuing this useful rule, DHS failed to follow certain procedures required by the Administrative Procedures Act, specifically allowing the public a comment period. The Washington Alliance of Technology Workers challenged the rule and the court held DHS could not “demonstrate that the 2008 Rule was necessary to forestall a ‘fiscal emergency.’” It therefore held against DHS and vacated the rule.

Fortunately for U.S. employers and their STEM employees, the court recognized the major impact it would have on employers and foreign students if it were to terminate employment authorization on such short notice. The court, therefore, delayed implementation of its order until February 12, 2016 to allow DHS time to properly submit the rule for notice and comment.

As long as the DHS provides ample notice and comment, there should be no need for concern about the continued employment authorization of your STEM student workers under their existing OPT periods. For now, no action needed.  However, when the rule is published and open to comment, employers should be prepared to provide vigorous support for the STEM employment authorization extension. Our attorneys will gladly assist employers with a letter, email, or call to representatives in Congress.

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