Foreign STEM Graduates’ Work Program Extension Proposed

By Roy Maurer Oct 20, 2015

A newly proposed rule would allow international students with a science, technology, engineering or mathematics (STEM) degree from a U.S. college and university to pursue on-the-job training in the United States for up to three years.

The Department of Homeland Security (DHS) issued a notice of proposed rulemaking Oct. 19, 2015, allowing STEM students who have elected to pursue 12 months of work-authorized optional practical training (OPT) in the United States to extend the OPT period by 24 months, for a total of 36 months of OPT employment status. This extension would replace the 17-month STEM OPT extension currently available.

“Many research projects take years to complete, and under the new STEM OPT extension, a student would have increased opportunities to learn how to apply for a grant or fellowship, become a responsible steward of grant money, initiate a study or project, see the study or project through to conclusion, write a report and obtain peer review, and have the report published,” DHS said.

“We are pleased to see that DHS is making every effort to ensure there are no disruptions for STEM OPT extensions,” said Justin Storch, manager of agency liaison at the Council for Global Immigration. Storch called the proposal an improvement over the current rule but cautioned that it comes with new obligations for employers.

The proposal seeks to improve oversight over STEM OPT extensions by requiring employers to establish formal mentoring and training plans and make new wage and labor attestations.

As with the current 17-month STEM OPT extension, the proposed rule would authorize STEM OPT extensions only for students employed by employers enrolled in the E-Verify employment eligibility verification program.

The public comment period regarding the proposed regulations ends Nov. 18, 2015.

Working Against the Clock

The proposal was first hinted at in November 2014 as a part of President Barack Obama’s executive actions on immigration.

The U.S. District Court for the District of Columbia vacated the original 2008 STEM extension regulation in August 2015 on procedural grounds. The court gave DHS until Feb. 12, 2016, to issue a new final rule.

New Benefits for Students

In addition to allowing students to stay in the U.S. for a longer period of time to complete their studies, the proposed OPT rule would:

  • Allow students to be eligible for an additional 24-month STEM OPT extension through enrollment in a subsequent STEM degree program.
  • Offer possible additions to STEM-eligible fields of study.
  • Permit students participating in post-completion OPT to use a prior eligible STEM degree from a U.S. school as a basis to apply for a STEM OPT extension, even if the student’s most recent degree is not a STEM degree.
  • Revise the number of days a student may be unemployed during the OPT period. Currently, students may be unemployed for up to 90 days of the initial period of post-completion OPT, and up to an additional 30 days if the student receives a STEM OPT extension. The proposed rule would retain the 90-day maximum period of unemployment during the initial period of post-completion OPT, but allow an additional 60 days for students who obtain a 24-month STEM OPT extension.

New Compliance Obligations for Employers

To guard against adverse effects on U.S. workers, DHS is proposing that employers be required to attest that they have sufficient resources and trained personnel available for the student and will not terminate, lay off or furlough any U.S. workers as a result of providing the extension.

Additionally, the proposed rule would require that the terms and conditions of an employer’s STEM OPT program, including duties, hours and compensation, be commensurate with those provided to the employer’s similarly situated U.S. workers. So long as the attestation is made in good faith, the rule would permit employers to rely on resources they already use for establishing compensation levels, such as local associations or national or local wage surveys.

The proposal also requires employers to implement a formal mentoring program for STEM OPT students and design a customized training plan with the students to enhance practical skills related to the student’s degree. Training plans would require specific training goals, as well as a description of how those goals will be achieved, and would be evaluated at six-month intervals.

Lastly, the rule proposes that Immigration and Customs Enforcement conduct onsite inspections to ensure employers abide by the attestations and program requirements.

What’s Next?

Storch said that DHS “will need to work quickly after the comment period ends to ensure that a final rule is issued that will take effect” by the court-appointed deadline. “They have given us every indication that they intend to meet that deadline,” he said.

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy


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