On October 19, 2015, the Department of Homeland Security (DHS) issued a notice of Proposed Rulemaking that would improve and expand training opportunities for F-1 Nonimmigrant Students with degrees in a STEM field. This rule was issued in response to a ruling issued in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security et al. which vacated the previous regulations on STEP Optional Practical Training (OPT) and gave DHS until February 12, 2016 to draft and pot a new rule that will allow the STEM OPT program for students in F-1 status to continue. In the decision, the court stated that the STEM OPT rule could temporarily remain in place to allow DHS time to issue new rules to help ensure there would be no interruptions in the ability of F-1 students with degrees in STEM fields to continue working pursuant to OPT.
The proposed rule makes several changes to the current F-1 STEM OPT program. Notably, it increases the amount of time available to individuals who received a degree in STEM fields beyond their initial 12 months in OPT from 17 to 24 months. It also allows students who use the STEM OPT 24 month period and then enroll in a qualifying higher-level STEM program to obtain a new 24 month STEM extension plus the 12 months of regular OPT.
The proposed rule also places new requirements on companies employing STEM OPT employees. In addition to continuing the requirement that employers of students seeking an STEM OPT extensions enroll in the government’s E-Verify online employee verification system, employers will have to implement formal mentoring and training plans for STEM OPT employees and must have a process in place for evaluating OPT employees. There are also U.S. worker protections included in the proposed rule, including a requirement that the employer have the resources to provide mentoring and training, a prohibition on the employer laying off U.S. workers as a result of hiring a STEM OPT worker, and requiring that the work being performed is in the employee’s field of study.
The Attorneys in the Immigration and Nationality Group at Hughes Socol Piers Resnick Dym, Ltd will continue to monitor the progress of this proposed rule and will report on any new developments in this area.