The long-awaited proposed rule on F-1 Optional Practical Training (OPT) was published in the Federal Register on October 19, 2015, by the U.S. Department of Homeland Security (DHS). The proposed rule is titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.” There is a 30-day public comment period that ends on November 18, 2015. The government is proposing an expansion of the F-1 OPT STEM program pursuant to President Obama’s Executive Action plan outlined in late 2014, and it is also addressing concerns about the initial F-1 OPT STEM rule which was recently vacated in a court decision.
Background on F-1 OPT
Foreign students attending colleges and universities in the United States with F-1 visas may obtain work authorization after graduation from their degree program. This work authorization is called F-1 Optional Practical Training. After receiving an Employment Authorization Card from the United States Citizenship and Immigration Services (USCIS), the F-1 student may work for any employer in his or her field of study for 12 months.
In April 2008, the DHS introduced and implemented an interim final rule (no notice and comment period) which extended F-1 OPT for certain students completing a program of study in a STEM field. This extension for F-1 STEM students extended the regular 12-month OPT period for an additional 17 months for a total of 29 months if the F-1 student meets the following requirements:
F-1 student must apply for the extension during the 12-month regular OPT period.
F-1 student has completed a degree in a STEM field included in the DHS STEM designated degree program list.
F-1 student will work for a U.S. employer in a job directly related to the student’s major area of study.
F-1 student will work for an employer enrolled in the USCIS E-Verify program.
F-1 student has properly maintained F-1 status.
Under the 2008 rule, the student applied for the extension prior to the expiration of the current 12-month OPT Employment Authorization Card. If the Employment Authorization Card expired prior to the decision from the government on the 17-month extension, the student could keep working and the work authorization end date was automatically extended. As part of this extension process, the Designated School Official (DSO) at the F-1 student’s college or university was required to authorize the 17-month extension and certify the STEM degree.
Since the implementation of the 2008 rule, the government has expanded the number of applicable STEM fields. The current list is available on the STEM-Designated Degree Program List.
Since 2008, F-1 STEM students and employers, as well as U.S. colleges and universities, have been authorizing and using this rule to allow those students in STEM fields to work — especially in situations when the H-1B cap has been reached and sufficient H-1B work visas are not available.
Proposed Executive Action—November 2014
In November 2014, President Obama announced executive actions to allow millions of undocumented immigrants to remain in the United States temporarily and apply for work authorization. This executive action also included improvements to employment-based immigration procedures and policies. President Obama directed that the OPT rules by revised to allow additional STEM OPT time and to make other changes to the OPT system. Such OPT recommended improvements included a longer time period for OPT for STEM F-1 students; a broader scope of participants, basing the ability to extend on a prior STEM degree; and closer monitoring of STEM OPT and employment. Since November 2014, DHS has been working on an expanded STEM OPT rule. Two past legal updates by Faegre Baker Daniels lawyers discuss President Obama’s executive action plan:
President’s Immigration Executive Action Will Impact Employers, November 2014
Early Immigration Action in New Congress, January 2015
WashTech Lawsuit and Court Decision
In March 2014, a group of IT workers filed a lawsuit challenging the entire F-1 OPT program. The lawsuit alleged that the DHS had no authority to create the F-1 OPT program. The lawsuit specifically claimed that the 2008 F-1 STEM OPT extension interim final rule should be invalidated due to the agency’s failure to follow required notice and comment procedures. In a decision and order dated August 12, 2015, the U.S. District Court for the District of Columbia concluded that DHS failed to follow the required notice and comment procedures under the Administrative Procedures Act (APA). The Court invalidated and revoked the 2008 rule. However, the Court stayed its ruling until February 12, 2016, to allow DHS time to promulgate a new rule through proper notice and comment procedures. This court ruling caused USCIS to expedite its OPT rulemaking process, resulting in the October 19 proposal. Although the Court’s decision is up on appeal, DHS stated in the proposed rule that it needed to take action now. If USCIS delayed and the Court’s decision took effect on February 12, 2016, all F-1 STEM work authorization would terminate, severely impacting the F-1 students, their employers and colleges and universities. Additional information on the WashTech ruling is available on a U.S. District Court for the District of Columbia document.
As will be outlined below, the proposed rule both addresses the issues raised in the WashTech decision and provides an expansion of the F-1 OPT STEM rule as outlined by President Obama under executive action.
New F-1 OPT STEM Extension Proposed Rule – Issued October 19, 2015
On October 19, 2015, DHS issued a proposed rule titled, “ Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.” The proposed rule asks for comments on the entirety of the rule in order to comply with the WashTech decision. The proposed rule also provides added benefits and restrictions on the F-1 OPT STEM extension and process.
Highlights of the F-1 OPT STEM Rule Changes
E-Verify Required: As in the 2008 rule, the proposed rule requires that employers eligible under the F-1 OPT STEM program be enrolled in the E-Verify system of USCIS. More information on E-Verify is available at U.S. Citizenship and Immigration Services on the DHS website. Employers will also need an Employer Identification Number (EIN) under the new rule.
Longer STEM Extension Period – 24 Months: The proposal extends the current STEM extension from 17 months to 24 months. In its comments with the proposed rule, DHS indicated that a 24-month program would enhance the academic benefit for the STEM student and that such an expansion would allow for additional research projects, grants, etc. that would benefit from a longer time period. DHS has specifically asked for comments on whether a 17-month, 24-month or 36-month STEM extension is appropriate. The proposal also allows F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level for one additional 24-month STEM extension. The rule would allow those F-1 students currently taking advantage of a 17-month extension to apply for a further extension to obtain the benefit of the full 24 months.
STEM Definition/CIP Categories: The proposed rule provides a clearer definition regarding the STEM fields of study under the Department of Education’s Classification of Instructional Program (CIP) categories. The proposed rule references a report from the Department of Education at Stats in Brief. The proposal also details a process for public notification of eligible STEM fields through the Federal Register. DHS indicates that it would define STEM field as a field included in the Department of Education’s CIP taxonomy within the summary groups containing mathematics, natural sciences (including physical sciences and biological/agricultural sciences), engineering/engineering technologies, computer/information sciences, and related fields. In the proposal, DHS states that the NCES definition encompasses those fields already on the current list and draws on the expertise of the Department of Education regarding STEM. In its request for comments, DHS has specifically asked for public comments about specific STEM fields, including any changes to the current content of the STEM field list. The proposed rule also confirms that DHS will continue to take suggestions for added STEM fields at SEVP@ice.gov.
Mentoring and Training Plan: Employers are required under the proposed rule to implement a formal Mentoring and Training Plan for the 24-month period of extension. The training plan needs to be completed, signed and presented to the Designated School Official (DSO) before the DSO can recommend the STEM OPT extension. The Mentoring and Training Plan will be on a proposed Form I-910 which will provide details about the goals of the STEM practical training opportunity, explain how the training is specific to the qualifying STEM degree, specify the compensation, describe the methods of performance evaluation and be signed by the employer and the student. The training plan will require the employer to sign and certify to various attestations, including material changes in the employment (which can include a change of supervisor), notification of the termination or departure of the student within 48 hours to the DSO; that the practical training opportunity is directly related to the STEM degree; that the student will receive on-site supervision, mentoring and training; the practical training opportunity will not result in the termination, layoffs or furloughing of any full-time, part-time temporary or permanent U.S. workers; the terms and conditions of the training opportunity are similar to other similarly situated workers; and the training will comply with all applicable federal and state laws relating to employment. If the student changes employers for a new practical training STEM opportunity, within 10 days of beginning the new training a new signed Mentoring and Training Plan must be submitted to the DSO and the DSO must provide a new recommendation.
Previously Obtained STEM Degrees: The proposed rule will allow an F-1 student to use a prior eligible STEM degree obtained from a U.S. institution of higher education as a basis to apply for a STEM OPT extension as long as the student’s most recent degree was also received from an accredited educational institution. Again, to be eligible for the STEM extension (and referenced in the Mentoring and Training Plan), the employment must be directly related to the STEM degree. Under the proposed rule, DHS indicates that for a previously obtained degree to qualify for a STEM OPT extension, the degree must have been conferred within 10 years preceding the application date.
Safeguards for U.S. Workers: As outlined and certified in the Mentoring and Training Plan, employers will be required to attest to the following: (1) the employer has sufficient resources and trained personnel to provide appropriate mentoring and training in connection with the specific opportunity; (2) the employer will not terminate, lay off or furlough any full-time or part-time, temporary or permanent U.S. workers as a result of providing the STEM OPT to the student; and (3) the student’s practical training opportunity assists the student in attaining his or her training objectives.
Employer Site Visits / School Accreditation: The new rule will authorize DHS to conduct employer site visits to ensure compliance with the rules and program requirements. The proposed rule will also limit eligibility to students with degrees from schools accredited by the Department of Education.
Compliance and Reporting Requirements: As with the 2008 rule, compliance and reporting will be required as part of the F-1 OPT STEM program. The proposed rule would require F-1 OPT STEM students to report to DHS any changes in names or addresses, as well as any changes to the employers’ names or addresses.
Unemployment Provisions: The 2008 rule first implemented the specific number of days that an F-1 student could be unemployed without affecting the F-1 maintenance of status. The current rule allows for 90 days during the initial 12-month period of F-1 OPT and an additional 30 days (for a total of 120 days) if the student received an F-1 OPT STEM extension. Under the proposal, the 90 days during the initial 12-month period of F-1 OPT would remain the same. However, there would be an increase in allowable days for unemployment for a total of 60 days during the STEM extension. The total amount allowed for a STEM student would be 150 days of allowable days in unemployment before affecting the F-1 student’s maintenance of status.
Proposed Rule Also Confirms F-1 Cap-Gap Extension for F-1 Students With Timely Filed H-1B Petitions
The 2008 rule included an F-1 cap-gap provision to allow F-1 students to remain in valid immigration status and with work authorization from the date of expiration on their F-1 OPT Employment Authorization Card up and until an October 1 start date with an H-1B approval and change to H-1B status. Under the F-1 cap-gap provision, if the F-1 student filed an H-1B petition (as of April 1 for the next fiscal year allotment of H-1B cap subject visas) and that H-1B petition was selected in the lottery, receipted and then approved for an October 1 start date, that student could remain employed and in valid immigration status from the time of the expiration of the Employment Authorization Card (between April 1 and September 30) until the automatic change to H-1B status as of October 1. The proposed rule retains the F-1 cap-gap relief for such affected students and their employers.
Conclusion / Upcoming On-Demand Webinar
As outlined above, DHS is taking comments on the proposed rule until November 18, 2015. With the February 12, 2016, deadline looming, DHS will likely do everything possible to quickly turn the proposed rule into a final rule to avoid disruption to F-1 students, colleges and universities and employers.
Please watch for details on an upcoming On-Demand Webinar that will discuss the proposed rule and information outlined above.