On January 21, 2022, President Biden expanded the STEM OPT program to incorporate individuals with levels within the following fields of research: Bioenergy; Forestry, Common; Forest Sources Manufacturing and Administration; Human Centered Expertise Design; Cloud Computing; Anthrozoology; Local weather Science; Earth Programs Science; Economics and Pc Science; Environmental Geosciences; Geobiology; Geography and Environmental Research; Mathematical Economics; Arithmetic and Atmospheric/Oceanic Science; Knowledge Science, Common; Knowledge Analytics, Common; Enterprise Analytics; Knowledge Visualization; Monetary Analytics; Knowledge Analytics, Different; Industrial and Organizational Psychology; Social Sciences, Analysis Methodology and Quantitative Strategies.
Underneath STEM-OPT, F-1 STEM graduates are eligible to increase of their OPT. They’re granted two extra years of employment authorization. Their employers are topic to stringent new necessities, together with the duty to organize an in depth coaching plan for every STEM OPT candidate, adjust to extra intensive reporting necessities and endure worksite inspections carried out by U.S. Immigration and Customs Enforcement (ICE). These necessities apply solely to extensions of OPT for F-1 college students with a qualifying U.S. science, expertise, engineering or math diploma; the usual 12-month OPT program is unchanged.
A abstract of the important thing factors of the revised STEM OPT program is beneath.
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ELIGIBILITY FOR A STEM EXTENSION OF OPT
The 2017 regulation broadened the eligibility standards for a STEM extension of OPT and lengthened the period of STEM employment authorization, as follows:
• A extra intensive checklist of U.S. STEM and associated levels will qualify F-1 college students for an OPT extension. As below prior guidelines, the F-1 scholar’s diploma should be immediately associated to the STEM OPT job. The scholar should have accomplished all diploma necessities to be eligible for a STEM extension, except for any thesis or comparable requirement.
• The STEM extension of OPT will likely be 24 months in period. Qualifying F-1 college students will thus be eligible for a complete of 36 months of OPT employment authorization, together with the preliminary 12-month OPT interval.
• College students who have been granted a 17-month STEM OPT extension below earlier guidelines can search an additional 7 months of labor authorization topic to the necessities and obligations of the brand new guidelines, as mentioned beneath.
• F-1 college students who earn an extra qualifying STEM diploma can apply for a second 24 months of OPT, however this era can’t instantly comply with the primary STEM OPT extension. There should be an intervening diploma and a interval of 12-month OPT earlier than the international nationwide can acquire a second interval of STEM OPT. No scholar can acquire greater than 2 durations of STEM OPT.
• F-1 college students with a beforehand obtained STEM diploma can qualify for the OPT extension so long as their prior diploma is immediately associated to the place. For instance, an F-1 scholar whose most up-to-date U.S. diploma was an MBA might qualify for a STEM OPT extension on the premise of her U.S. bachelor’s diploma in chemistry. The sooner diploma should have been conferred inside 10 years earlier than the applying for the OPT extension and have been issued by a U.S. faculty that’s duly accredited and is licensed by the Scholar and Trade Customer Program (SEVP) on the time of the applying. Underneath earlier guidelines, an OPT extension was accessible solely to these whose most up-to-date U.S. diploma was in a qualifying STEM subject.
STEM OPT NEW EMPLOYER OBLIGATIONS
Employers should meet vital new obligations with the intention to make use of an F-1 scholar in the course of the STEM OPT interval.
Coaching plan. Earlier than an utility for a STEM OPT employment authorization doc (EAD) might be filed, the employer and the F-1 scholar should put together and signal a proper coaching plan and submit it to the coed’s designated faculty official (DSO). DHS is anticipated to challenge a brand new Kind I-983, the Coaching Plan for STEM OPT College students, earlier than the brand new regulation is carried out.
The plan should state the precise objectives for the STEM OPT interval and the way they are going to be achieved; element the precise information, abilities or methods the employer will impart to the coed; clarify how the coaching is immediately associated to the coed’s STEM diploma; and describe how the coed will likely be supervised and evaluated. The ultimate rule clarifies that employers can depend on their present coaching insurance policies to fulfill the analysis and supervision necessities, so long as their insurance policies meet the necessities of the rule.
DHS initially sought to require employers to determine a proper mentoring course of for F-1 college students on STEM OPT, however distributed with this requirement within the remaining regulation.
Employer attestations. Employers should certify the next within the coaching plan:
• The phrases and circumstances of the STEM OPT employment – together with compensation – are commensurate with these supplied to equally located U.S. staff. Compensation info should be disclosed within the coaching plan.
• The STEM OPT scholar is not going to “change” a full- or part-time, non permanent or everlasting U.S. employee. The proposed regulation would have required the employer to attest that no U.S. employee can be terminated, laid off or furloughed a U.S. employee.
• The employer has ample sources and personnel to coach the coed within the place.
• The coaching is immediately associated to the STEM diploma and the supplied place will obtain the targets of the coaching plan.
Evaluations. The employer and the F-1 scholar should full a efficiency analysis after the primary 12 months of STEM OPT and on the conclusion of the STEM program. Evaluations should be signed by the coed and employer, and the coed should submit the analysis to the DSO inside 10 days after the conclusion of the assessment interval. DHS initially deliberate to require evaluations each 6 months throughout STEM OPT, however opted for a diminished analysis requirement in response to suggestions from stakeholders.
Employment termination. The employer is required to inform the DSO inside 5 enterprise days if the F-1 scholar is terminated or departs the STEM OPT job; below prior guidelines, the employer had 48 hours to make this notification.
Adjustments within the coaching plan. Employers and college students are obligated to inform the DSO “on the earliest accessible alternative” if there are materials adjustments to or deviations from the coaching plan. Materials adjustments embrace a lower within the F-1 scholar’s compensation that’s not tied to a discount in work hours; a major lower in work hours; any lower in work hours beneath the minimal 20 hours per week (excluding day off pursuant to the employer’s depart coverage); a change within the employer’s EIN as a consequence of company restructuring; or any change or deviation that renders the employer’s attestations invalid or the coaching plan inaccurate.
E-Confirm. As below prior guidelines, employers should be enrolled and collaborating in E-Confirm to make use of an F-1 scholar in STEM OPT. The brand new regulation doesn’t change this obligation however commentary to the rule specifies that the employer should take part in E-Confirm on the location the place the coed will work.
The brand new regulation provides U.S. Immigration and Customs Enforcement (ICE) the authority to conduct on-site critiques to confirm whether or not employers are adhering to their coaching plans and in any other case complying with STEM OPT program necessities. The company will give employers 48 hours’ discover of a website go to, except the go to is triggered by a criticism or different proof of noncompliance.
All F-1 college students on STEM OPT will likely be required to:
• Report back to the DSO inside 10 days after beginning a brand new STEM OPT job. If there’s a job change from the unique STEM job, the coed should submit the brand new employer’s coaching plan to the DSO, who should make a brand new suggestion for STEM OPT.
• Report back to the DSO inside 10 days of a change of their authorized identify, residence tackle, employer’s identify and tackle or lack of employment.
• Report back to the DSO any materials adjustments to the coaching plan “on the earliest accessible alternative,” as described above.
• Report back to the DSO each 6 months to substantiate the accuracy of data of their SEVIS file, together with their authorized identify and residence tackle, employer identify and tackle and the standing of their present employment.
As below prior guidelines, F-1 college students on STEM OPT are topic to limits on unemployment, however these limits will improve. The brand new rule permits STEM OPT college students a most of 150 days of unemployment throughout their complete post-completion OPT interval – 90 days for the preliminary 12-month grant and an extra 60 days as soon as granted a STEM extension. Beforehand, F-1s granted STEM OPT have been restricted to a most of 120 days of unemployment in the course of the post-completion OPT interval.
USCIS will start to just accept functions for a STEM extension of labor authorization below the brand new rule on Might 10, 2016. Earlier than an utility might be submitted, the next steps should be accomplished:
• STEM OPT employer and the F-1 scholar should put together and signal the coaching plan.
• The scholar should submit the coaching plan to the DSO.
• The DSO should assessment the plan to make sure that it’s full and signed and that it addresses program necessities.
• The DSO should approve the coaching plan and advocate STEM OPT extension by endorsing the F-1’s Kind I-20.
• USCIS Kind I-765, the applying for employment authorization, and supporting documentation should be submitted throughout validity of F-1’s preliminary OPT EAD and inside 60 days of the DSO’s suggestion. The coaching plan needn’t be submitted with the applying, however USCIS has the authority to request for a duplicate of the plan.
If the present OPT EAD expires whereas the STEM extension is pending, the F-1 scholar’s employment authorization is mechanically prolonged for as much as 180 days whereas the applying is adjudicated, as below present guidelines.
TRANSITIONAL RULES FOR STEM OPT APPLICATIONS FILED BEFORE MAY 10
Between now and Might 9, 2016, USCIS will proceed to just accept STEM OPT EAD functions below present guidelines. A STEM OPT EAD that’s granted earlier than Might 10 will likely be legitimate for 17 months and will likely be topic to earlier program necessities. Nevertheless, if the applying is pending on or after Might 10, USCIS will adjudicate it below the brand new laws and can challenge a request for a coaching plan that meets the brand new necessities. If permitted, the EAD will likely be issued for twenty-four months.
TRANSITIONAL RULES FOR F-1 STUDENTS ALREADY ON STEM OPT
F-1 college students who maintain a legitimate 17-month STEM OPT EAD issued and legitimate earlier than Might 10, 2016 can proceed to work by way of their EAD expiration, except their EAD is withdrawn or revoked. They and their employers will likely be topic to earlier program guidelines.
F-1 college students in a interval of 17-month STEM OPT can file for a 7-month extension between Might 10, 2016 and August 8, 2016, supplied that the coed has at the least 150 days remaining on their present EAD on the time the applying is filed and the necessities of the brand new regulation – together with an permitted coaching plan – are met. If the coed’s OPT EAD expires whereas the brand new utility is pending, she or he receives an automated extension of labor authorization for as much as 180 days or till the applying is adjudicated.
F-1 college students who’ve accomplished their OPT interval and are within the 60-day grace interval usually are not eligible to file for a STEM extension below the brand new or present guidelines.
CAP-GAP BENEFITS FOR F-1 STUDENTS AWAITING A CHANGE OF STATUS TO H-1B
The brand new regulation maintains “cap hole” protections for F-1 college students who’re awaiting a change of standing to H-1B. As below prior guidelines, an F-1 scholar who’s the beneficiary of an H-1B cap petition and a request to vary standing to H-1B filed whereas his OPT EAD is legitimate receives an automated extension of standing and work authorization from the expiration of the EAD by way of October 1, the date that the change of standing takes impact. A scholar in legitimate F-1 standing with out OPT or with an expired OPT EAD when the cap petition is filed receives an extension of keep solely.
In commentary to the ultimate regulation, the company reaffirms that cap-gap protections can be found solely when the F-1 scholar is the beneficiary of an H-1B petition that’s topic to the annual cap; a petition for cap-exempt H-1B employment is not going to confer these interim advantages. The company additionally clarifies that F-1 college students within the cap-gap interval could change employers.
WHAT THE REGULATION MEANS FOR EMPLOYERS AND F-1 STUDENTS
The rule broadens employment alternatives for F-1 STEM college students, however the vital new obligations on college students, employers and colleges would require immediate planning. Employers and F-1 college students who will pursue STEM OPT employment should act rapidly to allow them to meet extra necessities in time to file functions when the brand new rule takes impact. Well timed submitting is especially crucial for these with an OPT EAD that expires quickly, and for individuals who wish to search a 7-month extension of their present STEM OPT.