Regulations often make businesses cringe, but not this one. A new rule will allow international students in STEM (Science, Technology, Engineering, Math) fields to be employed in the United States for a longer period of time once they graduate, a boon to employers in a field with fewer graduates and shortages of talent.
International students attending U.S. colleges and universities through a student F-1 visa must obtain authorization from their college or university for employment. This program, known as Optional Practical Training (OPT), authorizes students to work up to 12 months after graduation to augment their academic knowledge with practical experience. Graduates in STEM fields can extend that employment for an additional 17 months (known as a STEM OPT extension).
On March 11, the U.S. Department of Homeland Security’s Bureau of Immigration and Customs Enforcement published a final rule that will impose new requirements on employers of STEM OPT participants. They include:
• Lengthening STEM OPT extension periods to 24 months for applications filed on or after May 10. This will allow international students in STEM fields to work up to 36 months.
• Requiring employers to develop and implement formal training plans with their STEM OPT employees. Previously, the college or university and the employee, not the employer, were primarily responsible for completing the application. (This remains the case for initial OPT employment).
• Imposing, for the first time, wage and other protections for STEM OPT students and U.S. workers.
What’s Behind the Changes?
The STEM OPT extension was originally introduced in 2008 when post-completion OPT employment was capped at 12 months, but employer demand for H-1B temporary workers and visa shortages compelled the change. OPT frequently serves as a bridge between an international student’s graduation and the availability of H-1B visas.
“F-1 and H-1B perform the interlocking task of recruiting students to pursue a course of study in the United States and retaining at least a portion of those individuals to work in the American economy,” the U.S. District Court for the District of Columbia stated in a recent decision.
The H-1B visas are capped at 85,000 per fiscal year and employer demand for these visas perennially exceeds supply. In fact, in the 12 years since the current annual quota was set, there has been a shortfall of H-1B visas each fiscal year. In eight of those years, more petitions for H-1B visas were filed in April (when H-1B visas are made available for the upcoming year) than were available, causing U.S. Citizenship and Immigration Services to select H-1B winners through a randomized lottery system. The result was a skills gap. U.S. employers were unable to find qualified American workers for specialty occupation vacancies but were prevented from using temporary worker visa programs to fill them.
The initial STEM OPT extension rule sought to alleviate this shortage. Authorization for the extension was obtained through the STEM OPT employee’s college or university and there was minimal interaction between the school and the employer. Safeguards to ensure that the STEM OPT employment actually corresponded with the relevant STEM field of study were lacking. However, the extension allowed H-1B lottery losers to retain highly skilled workers until the next H-1B lottery or pursue other temporary or permanent visa options to meet their needs.
The landscape changed last year with the case of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security. In that case, the plaintiffs challenged the initial STEM OPT extension rule on several grounds and the U.S. District Court for the District of Columbia ended up vacating the STEM OPT extension rule. To avoid disruption of existing STEM OPT employment relationships, however, the court delayed the effective date of its new order.
After some delays, the Department promulgated its new final rule in March, which went into effect in May 10, will continue to allow OPT extensions for international students with STEM degrees. With the longer extension, STEM OPT employees will have the opportunity to work and participate in up to three H-1B lotteries, further lessening H-1B shortages.
But the final rule also creates new obligations for STEM OPT employers. The biggest is requiring a formal training plan. Defined on the new Form I-983, the training plan must “identify goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student, and explain how those goals will be achieved,” describe a performance evaluation process and methods of oversight and supervision.
To ensure that STEM OPT employment does not adversely affect U.S. workers (as is required for H-1B employment), the employer must also describe the compensation and certify that the terms of employment are commiserate with U.S. workers and certify that it is not replacing a full- or part-time U.S. worker. The training plan must explain how the training is related to the STEM OPT employee’s field of study.
Moreover, employers must report terminations to the sponsoring college or university, complete annual evaluations, and report material changes (such as a change in the identity of the employer or reduction of compensation or hours worked). Finally, the rule clarifies that STEM OPT extensions are only available for full-time (more than 20 hours per week) employment, prohibiting the use of STEM OPT extensions for volunteer opportunities.
Employers with existing STEM OPT employees will not need to comply with the new requirements. However, U.S. Immigration and Customs Enforcement will permit certain existing STEM OPT employees to take advantage of the lengthier 24-month extension if their employment complies with the new rule and an application is filed by Aug. 8.
Nathan P. Warecki is an attorney at Sheehan Phinney in Manchester, where he focuses on corporate law, including immigration. He can be reached at 603-627-8189 or nwarecki@sheehan.com. For more information, visit sheehan.com.
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