DHS Releases New STEM OPT Extension Regulations – How Will You Be Affected?

After much uncertainty and ongoing litigation, the Department of Homeland Security has published new regulations that increase the Optional Practical Training (OPT) extension period from 17 months to 24 months for STEM (Science, Technology, Engineering, and Mathematics) graduates in F-1 nonimmigrant status. However, one of the rules – which takes effect from May 10, 2016 – creates new procedures and obligations for both students and employers. United States Citizenship and Immigration Services (USCIS) will continue to adjudicate 17-month STEM extensions through May 9, 2016. Starting May 10, all requests will be processed based on the new 24-month regulations.

The regulations create new attestation requirements for employers of STEM OPT holders, specifically the creation and maintenance of a detailed “individualized training plan” through Form I-983, administered by Immigration and Customs Enforcement (ICE), which is a separate component from the I-765 Application for Employment Authorization. The I-983 requires employers to certify that they are paying STEM OPT beneficiaries a wage that is commensurate with similarly situated U.S. workers. The form also requires employers to describe the student’s “training program” as part of OPT, including a description of the student’s role at the company, their goals and objectives in relation to skills and education, employer oversight during the OPT period, and evaluations and assessments by both the employer and student. An overview of the new form is available at https://studyinthestates.dhs.gov/form-i-983-overview. If a student has filed or will file their STEM OPT extension and it will be pending on May 10, 2016, USCIS will issue a Request for Evidence (RFE). The RFE will allow the student to request the full 24-month extension, and will request submission of a new Form I-20 reflecting the 24-month extension based on a completed Form I-983.

Employers must ensure compliance with the regulations throughout the OPT period, certifying adherence to training and payment, and reporting terminations and material changes (such as changes in hours, compensation and terminations) to the student’s Designated Student Officer (DSO) at the institution that granted their degree. Employers should also note that ICE may conduct site visits to verify that the details of the student’s employment match those listed on the I-983, and violations can result in fines and criminal penalties.

Students are also responsible for accurate reporting and compliance with the new regulations. Every six months, students must communicate with their DSO to confirm that their SEVIS record accurately reflects their current circumstance, including their mailing address, employer’s name and address, and status of current employment. Students are also responsible for submitting annual self-evaluations to their DSO about the progression of their training experience. Students must report any material changes of their training to their DSO, including changes of work hours, pay, training objectives, and, most importantly, a change of employer or unemployment. Students may also report employer noncompliance and violations directly to ICE.

If you are an employer or an applicant for a STEM OPT extension and you would like to know more about your responsibilities under the new regulations, please do not hesitate to contact us.

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