New Proposed OPT Rules for STEM: Up to 3 Years OPT plus Cap-Gap Relief

rules

The U.S. Department of Homeland Security has proposed an amendment in its regulations pertaining to the optional practical training or OPT program. The proposal seeks to allow international F-1 students who are currently holding a U.S. degree in sciences, technology, engineering, or mathematics (STEM) to extend their OPT period from 12 months to 24 months. To be qualified, they must have attained their degree from any accredited institution. The extension in OPT period aims to allow them to have more time to pursue work experience that are related to their degree. Currently, the extension available to STEM degree holders is up to 17 months. The proposal would supersede this current extension.

However, the extension has some conditions that come with it. One is the inclusion of an increased oversight on the employment of the beneficiaries of STEM OPT. Employers also have to satisfy specific requirements such as enrollment in the verification program called E-Verify employment eligibility. They must also implement training plans, formal mentoring, and make specific attestations, which are similar to what other employment-eligible visa categories require.

Employers must also attest that:

1.) There are available equipped personnel and sufficient resources so they can provide appropriate training and mentoring;

 2.) The opportunity significantly helps students in accomplishing his or her objectives in the training;

3.) The compensation, duties, and hours are proportionate with workers under the same situation in the U.S.;

4.) There will be monitoring of ongoing reporting requirements; and

5.) There will be no furloughs or lay-offs of workers that came from the student’s training of STEM.

Aside from the extension, the proposal also supports the continuous Cap-Gap relief. In an H-1B cap petition that is timely filed, the F-1 student who is named as the beneficiary is allowed extension for his or her OPT duration status of up to October 1st under the fiscal year when the visa for H-1B is requested.

The proposed regulations in the DHS improve the STEM OPT program’s integrity because it encourages students to gain STEM experience that are practical and valuable. At the same time, the proposal also prevents the U.S. workers from suffering from the adverse effects of the program. Students are expected to be better in terms of their qualification to the careers they chose in their respective study field. This happens when they have enhanced functional understanding of academic knowledge application in a work setting. It should be noted that only employers who are committed to develop the skills that are honed through practical application and knowledge of students can provide these on-the-job experiences. In addition, the proposal to amend the rules aims to make the U.S. more competitive in attracting STEM students from all over the world to study and remain in the country lawfully.

The proposed rule is a response to a court decision that vacates a similar DHS regulation in 2008. The regulation was vacated due to procedural grounds. Public comments are accepted for the proposal, which is available at http://federalregister.gov/a/2015-26395. Comments are accepted until November 18, 2015.  

Marian Moore – Social Media Manager

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