By: Grant W. Godfrey
On October 19, 2015, the Department of Homeland Security (“DHS”) published in the Federal Register a proposed rule that would revise work authorization for F-1 students. The proposed rule addresses extensions of F-1 post-completion Optional Practical Training (“OPT”) for foreign students who have completed U.S. degree programs in the fields of Science, Technology, Engineering, or Mathematics (“STEM”). The proposed rule, if enacted as published, would replace the current STEM OPT regulations that were invalidated by court decision in August 2015 on procedural grounds. To mitigate potential harm to foreign students and their employers, the court stayed its judgment for six months, i.e. until February 2016, to give DHS time to promulgate new regulations in accordance with the Administrative Procedures Act.
The proposed rule stays within the spirit of the rule that has previously been in effect, with a few twists. Highlights include:
- The STEM OPT extension of work authorization will be increased from 17 months to 24 months;
- F-1 students who have graduated from a non-STEM degree field, but previously received a STEM degree in the U.S., may be able to use the STEM OPT extension if they meet certain eligibility criteria;
- The employer must draft a formal mentoring and training program and submit it to the school before the F-1 student can apply for the STEM OPT extension. The program needs to include formal evaluations and those evaluations must be submitted to the school prior to the conclusion of the STEM OPT program;
- The employer will need to attest that: (1) the duties, hours, and compensation of the student will be in line with similarly situated U.S. workers; (2) it has sufficient resources and personnel to carry out the training program; (3) it will not terminate, lay off, or furlough any U.S. workers as a result of the program, and (4) the job opportunity furthers the training that the student received in the degree program;
- The employer must be registered on E-Verify; and
- Some of the students who are currently employed using the current 17 month STEM OPT extension will be allowed to apply for the extra seven months of employment authorization if they otherwise meet the requirements under the new program.
DHS will accept comments on the proposed rule until November 2015. They will then need to review the comments, draft a final rule, and publish the final rule at least 60 days before it becomes effective. We will provide updates when the final rule is published. In the meantime, please do not hesitate to contact a member of our Immigration Team with any questions.