DHS Proposes New STEM OPT Extension Rules

On October 16, 2015, the Department of Homeland Security (DHS) released a notice of proposed rulemaking (NPRM) concerning new rules for extending the Optional Practical Training (OPT) program for international students with degrees in science, technology, engineering, and mathematics (STEM). The notice will be published in the Federal Register on Monday, October 19, 2015, and will likely be subject to a 30-day comment period.

This much-anticipated notification comes at a critical time for thousands of international students and their employers. An August 12, 2015 decision by the U.S. District Court for the District of Columbia in the case of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security vacated the previous set of STEM OPT regulations making the future of the STEM OPT program uncertain for international students in the United States who hold the F-1 visa. The NPRM is consistent with direction from the district court that a new rule be promulgated before February 12, 2016, in order to continue the program.

New Benefits for STEM-Eligible Students

The proposed rule provides the following benefits to STEM-eligible international students:

• Increases the OPT extension period from 17 to 24 months for a total of 36 months of OPT employment status
• Allows students to be eligible for an additional 24-month STEM OPT extension through enrollment in a subsequent STEM degree program
• Offers a clearer definition of and possible additions to STEM-eligible fields of study
• Revises the number of days an F-1 student may be unemployed (i.e., a grace period) by an additional 60-days if the student receives a STEM OPT extension

New Requirements for Employers

These additional benefits also come with significant compliance obligations for employers. While E-verify and reporting requirements remain largely unchanged, employers will be required to make the following additional attestations:

• The employer has sufficient resources and trained personnel available to provide appropriate mentoring and training in connection with the specified field of study.
• The employer will not discharge, layoff, or furlough any full-time or part-time, temporary or permanent U.S. workers as a result of providing the STEM OPT to the student.
• The opportunity promotes the student’s training objectives.

DHS will also require the employer to provide compensation comparable to that of similarly situated U.S. workers. Although this compensation attestation requires only good faith belief, employers may need to submit objective evidence explaining how their compensation level is calculated.  This may include national or local wage surveys or prevailing wage data provided by the U.S. Department of Labor’s Office of Foreign Labor Certification.

Perhaps most critical to employers, the rule proposes that Immigration and Customs Enforcement (ICE) may, at its discretion, conduct on-site inspections to ensure employers abide by the attestations and program requirements.

Next Steps

DHS is expected to specify a public comment period ranging from 30 to 60 days once the NPRM is published. This notice-and-comment process enables anyone to submit a comment to any part of the proposed rule. DHS will take comments and feedback into consideration in publishing the final rule.