The Department of Homeland Security has begun circulating a proposed regulation that covers one of President Obama’s more significant employment-based executive action proposals. It also is a response to a judge’s order striking down the existing STEM OPT program because of a lack of notice and commenting opportunity in the issuance of the 2008 interim rule. The judge gave the government until February to have a replacement rule in place. The proposed rule would make various changes to the F-1 STEM Optional Practical Training program and includes formal rule making for the cap-gap program. Most significantly, the STEM OPT extension would increase from 17 to 24 months.

Here are the most important takeaways from the proposed rule.

  1. There’s a 30-day comment period from the date the rule is published in the Federal Register (probably next Monday).
  2. In 2008, DHS issued an interim final rule that created a STEM OPT program where individuals who received a degree in certain science, technology, engineering and math fields could receive an additional 17 months of optional practical training beyond the 12 months open to most F-1 students. Employers have to participate in E-Verify. The new rule expands this to 24 months of additional OPT.
  3. If a student uses the STEM OPT 24-month period and then enrolls in a new higher level STEM program, the student would be entitled to a new 24-month STEM extension (plus the 12 months of regular OPT).
  4. The proposed rule defines which STEM categories qualify based on the Department of Education’s CIP taxonomy and includes groups containing mathematics, natural sciences (including physical sciences and biological/agricultural sciences) engineering/engineering technologies and computer/information systems and related fields. Health and social sciences are not included. DHS will publish a list of accepted STEM fields and also update the Federal Register when the list changes.
  5. Employers will need to implement formal mentoring and training plans for STEM OPT employees (using form I-910). Employers must also have a process in place for evaluating the OPT employee.
  6. STEM OPT extensions are available to people in non-STEM programs if the F-1 student earned an earlier STEM degree from an accredited US institution. The new position must be in the same STEM-related field. For example, if a person gets an MBA after getting a STEM degree and then works for a company where the STEM background is needed, this might be eligible for STEM OPT.
  7. US worker protections are now included in the program including a) the employer showing it has the resources to provide mentoring and training, b) the employer being forbidden from laying off US workers as a result of hiring a STEM OPT worker, and c) the training must be in the student’s field.
  8. Only accredited schools may participate in the STEM OPT program and DHS has the discretion to conduct on-site inspections at employer work sites to determine compliance.
  9. Students currently are allowed to be unemployed for 90 days during the initial 12 month OPT and up to 30 days during the STEM extension. The new rule would allow up to 60 days in the STEM extension period.
  10. The existing E-Verify requirement remains unchanged as does the existing school reporting requirement and the cap-gap extension program.
  11. F-1 students currently in STEM OPT would be able to request extensions for the additional 7 months as long as they apply within 120 days of the end of their 17-month period and the employer meets the new employer requirements.
  12. The government intends for the rule to be finalized before February 13, 2016 to meet the judge’s deadline in the STEM OPT litigation. If DHS is unable to issue a final rule by then, it may end up returning applications and asking people to refile.
  13. The proposed rule requires that the terms and conditions of an employer’s STEM practical training opportunity – including duties, hours and wages – be comparable to similarly situated US workers. Using DOL wage data is one way to demonstrate this. Employers will be required to provide wage information to DHS.
  14. The proposed rule authorizes a recurring evaluation process allowing ICE to monitor student progress during the OPT period consistent with the mentoring and training plan.
  15. Employers, just as in the 2008 rule, must report departures of STEM OPT F-1s within 48 hours and the F-1s must report to the DSO every six months. New compliance requirements include
    • STEM OPT employers must have an Employer ID Number
    • EAD applications must be submitted within 60 days of the DSO enter the student information in SEVIS (versus 30 days under the current rule)
  16. DHS is working on a new technology that would allow students to update some of their own information themselves in SEVIS.
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