USCIS: Clarification of STEM OPT Extension Reporting Responsibilities and Training Obligations

US Citizenship & Immigration Services (USCIS) updated their Optional Practical Training Extension for STEM Students (STEM OPT) webpage to clarify the reporting responsibilities for those participating in the STEM OPT program. USCIS states:

Students and employers must report material changes to the Designated School Official (DSO) at the earliest opportunity by submitting a modified Form I-983. Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days. As previously indicated on the webpage, students must report certain changes, such as changes to their employer’s name and address, to their DSO within 10 business days.

The reporting obligation is especially important since those failing to do so could possibly accrue unlawful presence, according to updated guidance by USCIS.

Noting that prompt reporting ensures that DHS is able to effectively oversee the program, DHS also clarifies that STEM OPT participants may engage in training that takes place at a location other than the employer’s principal place of business but only if all training obligations are met, including that the “employer has and maintains a bona fide employer-employee relationship with the student.” DHS notes that they will perform a case-by-case review confirming whether the student will be a “bona fide employee” of the employer that signs the training plan, and also confirm that the employer signing the training plan is the same entity employing the student and providing the practical training experience.

CNN: "Why we should expand the H-1B visa program"

Rosario Marin, the 41st US treasurer under President George W. Bush and current chair of the American Competitiveness Alliance, a coalition of organizations advocating for immigration reform, is calling for an expansion to the H-1B program. With an H-1B cap that is currently set at 65,000 per fiscal year with an additional 20,000 available to applicants who possess an advanced degree from a US educational institution, this year the government received over 236,000 H-1B petitions (about 3,000 more than last year), which means many presumably qualified applicants are forced to return to their home country or find other ways to remain in the US.

Describing herself as a proud and lifelong Republican, Marin says she is going against her party’s platform and calling for a “strong, sensible immigration reform” that includes expanding the number of H-1Bs issued per year. She says:

There is overwhelming demand from American companies—both large and small—for educated, skilled foreign workers to fill jobs in computer programming, coding, medicine and information technology. These are jobs that would be left largely unfilled if not for international workers, as our domestic workforce doesn't consist of graduates with these skills in the enormous numbers we require. This is why it will be critical for Congress and the next president to push for immigration reform that expands the H-1B program.

A naturalized US citizen herself, she argues that H-1Bs and immigrants are essential to the American economic system. “Without them, companies struggle to locate the specific people with the specific computer and science skills they need to grow, translating into an inability to expand, to create jobs, to scale up,” she writes. “The United States must work to address our shortage of students graduating with advanced science, math and technology skills, but until it does, American companies need high-skilled international workers, not only to compete, but to survive.”

Opponents of the H-1B claim American companies often use the H-1B program to replace higher paid American workers and “lease” out lower-paid foreign national H-1B workers through third-party companies. Another study reveals that the truth about STEM fields is more complicated. The Monthly Labor Review of the Bureau of Labor Statistics states there are both shortages and surpluses of STEM workers, depending on the particular job market segments and geographic location. The study shows that while there is no shortage in the academic job market, in the private sector, positions such as software developers, petroleum engineers, data scientists, and those in skilled trades are in high demand.  

In her opinion piece, Marin concludes: “Our power and influence is owed largely to having been the country that gave the world automobiles, personal computers, countless other inventions. And people—well-educated, highly skilled people, many of them immigrants—were behind each and every one.”

DHS Enhances Optional Practical Training Program in STEM Fields

Last week the US Department of Homeland Security (DHS) published a final rule to strengthen and enhance the Optional Practical Training (OPT) program for international students in science, technology, engineering, and mathematics (STEM) fields, allowing students from accredited schools the option to work in the US for up to three years after graduation. The final rule replaces the existing 2008 interim final rule, and amends the current regulations at 8 C.F.R. parts 214 and 274a, regarding OPT for F-1 nonimmigrant students who have completed a STEM degree. The rule, which received more than 50,000 comments, the most in DHS history, will officially go into effect Tuesday, May 10, 2016.

“The new rule for STEM OPT will allow international students with qualifying degrees to extend the time they participate in practical training, while at the same time strengthening oversight and adding new features to the program,” Lou Farrell, director of the Student and Exchange Visitor Program (SEVP) said in the press release.

The final rule, part of Obama’s executive action proposals, increases the STEM OPT extension from the current seventeen months to twenty-four months, and also includes the following enhancements and protections:

• Only students who earned a degree from a school accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP may apply for a STEM OPT extension.

• Participating students who receive an additional qualifying degree from an accredited college or university can apply for a second STEM OPT extension.

• Participating students can use a previously-earned qualifying degree to apply for a STEM OPT extension. The prior degree must not have already formed the basis of a STEM OPT extension and must be from a school that is both accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP at the time of the student’s STEM OPT application. The student’s most recent degree must also be from an accredited and SEVP-certified institution.

• Employers participating in STEM OPT must incorporate a formal training program that includes concrete learning objectives with proper oversight.

• Employers and students must report material changes in their training program.

• To guard against adverse effects on U.S. workers, terms and conditions of a student’s training opportunity – such as duties, hours, and compensation – must be on par with U.S. workers in similar positions in the same geographic area of employment. Additionally, the student must not replace a full-time, part-time, temporary or permanent U.S. worker.

• Students must work a minimum of 20 hours per week per employer to qualify.

• Students are permitted a limited period of unemployment during the initial period of post-completion OPT and the STEM OPT extension.

• All STEM OPT employers must participate in DHS’ E-Verify program.

As BuzzFeed points out, the new regulation is meant to attract high-demand tech and engineering talent to the US, and is beneficial for not only foreign students in STEM fields after graduation but also the American universities that recruit them. Since the vast majority of foreign students pay full tuition, without relying on institutional scholarships or even federal student loans, foreign students are important sources of revenue for many American colleges. The influx of foreign students in the US last year was at the highest growth rate in thirty-five years.

“This extension is absolutely going to help colleges in the competition for the limited pool of international students [that want] a top-flight education in an advanced industrial economy,” Bill Stock, the incoming president of the American Immigration Lawyers Association (AILA), said in BuzzFeed.

“As a kid, you have this craze of going to the U.S. to study,” Sapan Patel, an Indian student who graduated in 2012 with a master’s degree from NYU’s Tandon School of Engineering, told BuzzFeed. “But the worry and stress of getting a job in the U.S., to have that hanging over your head, that scares you.” Because of the uncertain and difficult visa process, Patel said, “some of my friends might decide to go to Canada, where getting a work permit and becoming a citizen is much easier, or to Australia.”

Along with the rule’s official publication, the Student and Exchange Visitor Program (SEVP), which monitors international students and also certifies schools and programs, launched a STEM OPT Hub on DHS’ Study in the States. This hub includes resources for students, designated school officials, and employers.

US News & World Report: “Foreign-Born STEM Workers Get to Stay in U.S.”

Since the federal government opened up public comments on the US Department of Homeland Security’s (DHS) proposed rule to expand the amount of time foreign STEM students are authorized to work in the US on a student visa, they’ve received over 3,000 comments, many of them positive.

The draft rule, incorporating President Obama’s executive action proposals, would make various changes to the F-1 science, technology, engineering, and mathematics (STEM) Optional Practical Training (OPT) program, most notably increasing the STEM OPT extension from seventeen to twenty-four months on top of the initial twelve months of OPT eligibility, for a total of three years of post-graduation work eligibility. As the public comments indicate, many are welcoming the extension as it would increase chances for OPT workers to obtain an H-1B visa since their employers would be able to enter the lottery (by filing an H-1B petition on their behalf) more than once.  

The proposal comes after a District of Columbia judge ruled this past August that the Department of Homeland Security (DHS) must vacate a 2008 rule that granted F-1 STEM students OPT extensions for seventeen months beyond the normal twelve months of OPT since DHS did not provide the necessary public notice and comment.

Since invalidating the rule effective immediately would have created a "major labor disruption” for technology-related industries as well as "substantial hardship" for thousands of international students, the judge imposed a six-month stay until February 12, 2016, a move that allowed DHS to correct—and thereby incorporate Obama’s executive directives including the STEM extension—for the necessary public notice and comment.

What’s in the proposed rule apart from the extension that is generating so many public comments? Some notable highlights include:

• Employers must implement formal mentoring and training plans for STEM OPT workers as well as an evaluation process;
• If students use the STEM OPT for a twenty-four-month period and then enroll in a new higher level STEM program, they would be entitled to a new twenty-four month STEM extension in addition to the standard twelve months of OPT;
• As part of the US worker protections included in the program, employers must show that they are not laying off US workers as a result of hiring a STEM OPT worker, they have ability to provide the necessary mentoring and training, and that the training must be in the student’s field;
• Moreover, duties, hours, and wages of an employer’s STEM practical training opportunity must be comparable to similarly situated US workers and wage information must be provided to DHS;
• The existing E-Verify requirements remain unchanged along with cap-gap extension program;  
• Only accredited schools may participate in the STEM OPT program;
• DHS is permitted to conduct on-site inspection.

Not everyone is thrilled with this proposed rule. One commenter wrote that even with a STEM degree from Cornell University, he has been struggling to find work. "Companies don't want to hire Americans and they abuse [H1-B] and OPT to hire cheap immobile labor instead of hiring anyone over the age of 35, especially in software or tech areas," he wrote.

Ron Hira, a public policy professor at Howard University, said in ComputerWorld that for STEM graduates there "is no justification to treat them as interns in need of further training." He went on: "The duration of 'training' being proposed by the Obama administration has no basis in any theory, data, or analysis…It is pure fiction that someone with a master's degree in electrical engineering needs an additional three years to work as an intern to be a productive professional.”

One computer science Ph.D. student, however, commented that without the proposed STEM extension that applicants are either "lucky to get an H-1B or just go home." With the proposed STEM extension, he says: "I will have three years in total to evaluate my career and have the freedom to work for the country[.]"  

The thirty-day comment period on the new rule ends November 18, 2015, and so for those who have something to add, don’t delay.

The American Bazaar: "F1 visa students may be allowed to work in the US for 6 years after February 12, 2016"

A District of Columbia judge recently ruled that the Department of Homeland Security (DHS) must vacate a 2008 rule that granted F-1 science, technology, engineering, and mathematics (STEM) students Optional Practical Training (OPT) extensions for seventeen months beyond the normal twelve months of OPT. Meanwhile, in an unrelated move, as part of President Obama’s executive actions the DHS has proposed regulations that would potentially allow STEM students to stay in the US for a total of six years.

The ruling on the seventeen-month STEM extensions by US District Court Judge Ellen Huvelle was partially in favor of the Washington Alliance of Technology Workers, who had pursed a case against F-1 STEM students to reduce their STEM extension to twelve months from seventeen, arguing that the STEM OPT extensions generated unfair competition by creating a cheaper category of workers. Judge Huvelle ruled that the DHS must vacate the rule since it did not provide the necessary public notice and comment.

Since invalidating the rule effective immediately would create a "major labor disruption” for technology-related industries as well as "substantial hardship" for thousands of international students, Judge Huvelle imposed a six-month stay until February 12, 2016, a move that should allow DHS to correct and implement the necessary public notice and comment.

In the end, this ruling may not have much impact because of the White House and DHS’s plans to expand and extend the OPT program for students in STEM fields. While the White House or DHS have not released further information about their plans, a letter from earlier this summer from Senator Charles Grassley, chair of the Senate Judiciary Committee, expressing concerns about the DHS plans, arguably reveals the proposed STEM changes.

Based on their briefing with Grassley, the DHS may be proposing regulations that would lengthen the OPT STEM extension period from seventeen to twenty-four months and allow students to take advantage of the STEM extension at two different times in their academic careers instead of only once, potentially “for a total of up to six years of postgraduation employment in student status[.]” STEM students could potentially be eligible for three years of OPT after undergraduate studies in a STEM field and three additional years after postgraduate studies in a STEM field.

Grassley, in his June letter to DHS Secretary Jeh Johnson, said that the proposed change to OPT STEM would permit “foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).”

"The proposed new regulations, while still being internally discussed, are irresponsible and dangerous considering the Government Accountability Office (GAO) report issued in March 2014 finding that the program was full of inefficiencies, susceptible to fraud, and that the department was not adequately overseeing it,” Grassley writes.

A spokesperson for Homeland Security's Immigration and Customs Enforcement division said in a statement in Inside Higher Ed that it could not elaborate on its OPT plans. “ICE is in the midst of drafting proposed rules for notice and public comment regarding foreign students with degrees in STEM fields from U.S. universities. Due to rule-making requirements, we cannot discuss the content of that proposed rule at this time,” the statement said.

Extending the OPT period for STEM students would be a welcome move within the international student community, the technology and science industry which employs many STEM workers, and among immigration practitioners, as the extended time would allow more opportunity to file H-1B petitions when the cap has been reached. At this point, however, we can only wait and see what if any changes will be enacted.

UPDATE DECEMBER 3, 2015: The US government has received nearly 35,000 comments on its plan to extend the OPT for STEM students from twenty-nine months to thirty-six months. The comments period closed last month. As was true with the initial ones, the majority of comments received support extending the program, which is not surprising given that as of September this year over 34,000 students were in the United States on a STEM OPT extension, many of whom would be forced to leave if the US government doesn't continue to bring the program into compliance with the law.