New Rule Extends Work Authorization for STEM Talent

Employers expected to create mentoring, training programs

By Roy Maurer Mar 10, 2016

Certain international students earning science, technology, engineering and mathematics (STEM) degrees from accredited U.S. universities will be able to stay in the United States for a total of three years post-graduation to participate in on-the-job training, according to a new regulation.

The U.S. Department of Homeland Security (DHS) will publish a final rule March 11 amending current F-1 student visa regulations on optional practical training (OPT) for certain students with STEM degrees from U.S. institutions of higher education. OPT is a form of temporary employment available to F-1 students that directly relates to a student’s major area of study.

The DHS estimates that about 34,000 individuals are now participating in this program and that the total number of affected students will expand in the coming years.

In the Nick of Time

The new rule takes effect May 10, 2016, one day before the current regulations are scheduled to be vacated, avoiding disruption for employers and foreign students.

STEM OPT work permits issued before May 10 will remain valid until expiration, and beginning on May 10, certain students will have a chance to apply for an additional seven months of OPT.

“We’re pleased to see the program will be protected and remain in place,” said Denise Rahmani, director of U.S. immigration for software firm Oracle. “Employers and employees both benefit from the STEM program as it facilitates the hiring and retention of students who … are an important component to the growth and development of U.S. businesses.” 

The extension allows U.S. universities and employers to continue to attract talented foreign nationals from around the world, said Rebecca Peters, director of government affairs at the Council for Global Immigration (CFGI), an affiliate of the Society for Human Resource Management.

“It’s a tremendous win for the U.S. tech community that will help us remain competitive in terms of innovation and top talent,” said Amy Gulati, manager of HR operations and responsible for immigration processing at Cvent, an event management software company based in McLean, Va.

Specifically, the final rule allows STEM students on F-1 visas who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months. This extension replaces the current 17-month STEM OPT extension.

The rule also aims to increase oversight over employers in the program by, among other things, requiring formal training plans for student workers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools.

The rule retains the requirement that only employers that participate in E-Verify are able to employ students working on STEM OPT extensions.

Changes to STEM OPT Eligibility

F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level are eligible for an additional 24-month STEM OPT extension, under the final rule. In total, a student may be eligible for up to two separate STEM OPT extensions over the course of his or her academic career, for a total of five years, upon completing two qualifying STEM degrees at different educational levels.

The rule also permits an F-1 student participating in a 12-month period of post-completion OPT based on a non-STEM degree to use a prior eligible STEM degree from a U.S. college or university as a basis to apply for a STEM OPT extension as long as the work is directly related to the previously obtained STEM degree.

New Requirements for Employers

Under the new rule, employers are charged with creating formal mentoring and training programs for OPT participants. Employers must develop a written training plan, to be signed by the employer and the student, as a prerequisite to obtaining the STEM extension.

The plan must describe:

  • The field in which the employee will receive training.
  • How the proposed work is directly related to the student’s degree.
  • Goals and objectives of the work.
  • Information on the student worker’s supervisor and co-workers who will supervise or train the student and their qualifications.
  • The methodology for measuring the student’s progress.

“I really support the requirements to develop training plans and mentorship programs,” Gulati said. “Employers should be doing this anyway, and it makes sense to invest in these high-potential and technically skilled employees.”

The DHS clarified that employers may use existing training programs to satisfy certain regulatory requirements for evaluating the progress of STEM OPT students.

The DHS adopted some of the recommendations put forward by CFGI to streamline the training plan, according to Justin Storch, the council’s manager of agency liaison. “Specifically, the final training plan allows one point of contact at the employer to do all necessary sign-offs and to evaluate performance on an annual basis rather than every six months,” he said. “This brings the training plan more in line with standard employment practices.”

The new rule also requires employers attest that terms and conditions of STEM OPT work, including duties, hours and compensation, are commensurate with those of similarly situated U.S. workers; that the student will not replace any U.S. workers; that the employer has sufficient resources and trained personnel available to provide appropriate training; and that the work will help the student attain his or her objectives.

The DHS is instituting new employer reporting requirements, including reporting any changes in the worker’s employment status or formal training plan.

The agency will have discretion to conduct employer worksite visits to verify compliance with the program. The DHS said the visits will generally be announced, but it may conduct an unannounced visit if a complaint or other evidence of noncompliance with the regulations comes to its attention.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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