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A written training plan is among the new employer requirements that went into effect May 10 for companies employing eligible foreign graduates of U.S. colleges and universities via the government’s science, technology, engineering and mathematics (STEM) Optional Practical Training (OPT) program.
The biggest change: replacement of the 17-month STEM OPT extension—on top of the 12 months of OPT available for all F-1 visa students—with a 24-month extension. The regulations also contain employer attestations, reporting requirements and the authority for new site visits to be conducted by the Student and Exchange Visitor Program, an arm of Immigration and Customs Enforcement (ICE).
“The new rule extends the period of work authorization significantly but also enhances compliance obligations significantly,” said Patrick Shen, a partner in the Washington, D.C., office of Fragomen, Del Rey, Bernsen & Loewy. “To me, it is an indication that ICE wishes to create a new program that addresses the needs of the marketplace but at the same time holds employers and employees to a higher standard.”
Perhaps the most noteworthy change for employers is the introduction of a written training plan for STEM OPT students.
“The training plan requirements will force those responsible for the immigration function to develop new processes with business partners, recruiters, managers and their immigration firms,” said Sameer Khedekar, a partner with the Pearl Law Group, a corporate immigration law firm based in San Francisco.
Training Plan Overview
The formal training plan—submitted on Form I-983 along with the application to extend OPT—must clearly articulate the student’s learning objectives and affirm the employer’s commitment to helping the student achieve those objectives.
Similar to the J-1 Exchange Visitor Form DS-2019, the new Form I-983 requires the student and the employer to submit a written description of:
The form must also establish that:
After the student and employer complete the necessary sections, the student is required to submit the completed and signed Form I-983 to his or her designated school official, where it will be kept in the student’s record. It will be incorporated at a later date into the Department of Homeland Security’s Web-based Student and Exchange Visitor Information System, which is used to maintain information on foreign students in the United States.
There is no one-size-fits-all approach for managing the new training plan requirements, Khedekar said. “It will be based on several factors like available resources and expertise within [an employer’s] immigration department, savviness of recruiters, the engagement level of managers, budget, and willingness to sign off on employer attestations without legal review.”
Shen cautioned employers to be sure the training plan meets all of the regulatory requirements to avoid delay or even rejection by the designated school official. “Employers also must closely monitor changes to the job duties or in employment which would necessitate amending the training plan. Just like many other regulatory obligations, compliance with the new STEM OPT rule is not overly complex, but does require close monitoring and making sure that a checklist is followed meticulously.”
Both STEM OPT students and employers are obligated to report to the school official any material changes to, or deviations from, the student’s formal training plan. These changes could include a reduction in compensation, a decrease in hours worked or changes to the student’s learning objectives as documented in the plan.
“Employers should take special care when terminating the employment of a worker on a STEM OPT extension, as they will have to notify the employee’s school of the termination within five days,” Khedekar said. “And before terminating the employee for poor performance, make sure the employee can’t argue that he or she didn’t receive proper training as documented on the Form I-983 and signed by the employer representative.”
The form also contains a midpoint and final evaluation of student progress, to be filled out by the student and reviewed and signed by the student and the employer.
All STEM OPT applications are now being adjudicated under the standards of the new rule. Applicants who filed for a 17-month STEM OPT extension and whose application was still pending as of May 10 will receive a request for evidence to submit documentation—including the training plan—showing eligibility for the 24-month extension.
Students who obtained a 17-month STEM OPT extension before May 10 may either retain their current status and remain subject to the previous rules or, in certain cases, apply for a seven-month extension between May 10 and Aug. 8, 2016.
“Practically speaking, it also means that employers and students must act quickly so they can meet additional requirements in time to file applications as the new rule takes effect,” Shen said. “Timely filing is particularly critical for those with an OPT employment authorization document that expires soon, and for those who want to seek a seven-month extension of their current STEM OPT.”
Roy Maurer is an online editor/manager for SHRM. Follow him
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