New Rule, New Requirements for Extended Optional Practical Training Period for Foreign Students

A new rule from the U.S. Department of Homeland Security became effective for a 24-month STEM OPT (Science, Technology, Engineering and Math Optional Practical Training) period. Pursuant to this rule, foreign students who have earned STEM degrees from schools that are accredited by a U.S. Department of Education-recognized accrediting agency and that are certified by the Student and Exchange Visitor Program (SEVP), and who have been granted OPT and are currently in the valid period of OPT, can quality for a 24-month extension of their OPT.

In addition to extending the STEM OPT period from 17 to 24 months, the new rule imposes additional obligations on employers. Specifically, the employer must now:

  1. Report material changes on the employment to the STEM OPT student’s Designated School Official (DSO) within five business days
  2. Implement a formal training program to augment the student’s academic learning through practical experience
  3. Provide an opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours and compensation
  4. Complete the appropriate sections of Form I-983, Mentoring and Training Plan. In this form, the employers must attest that:
    • They have enough resources and trained personnel available to train the foreign student
    • The student will not replace a full- or part-time, temporary or permanent U.S. worker
    • Working will help the foreign student attain his or her training objectives
  5. Prove that there is a bona-fide employer–employee relationship.

U.S. Immigration and Customs Enforcement may now visit employers’ worksites to verify whether all STEM OPT requirements are met.

The obligation to be enrolled in E-Verify did not change under the new rule.

Preparing Form I-983 and devising an appropriate training program are complex tasks. Our office can assist in completing this form, and in providing training sessions for your HR department. We also have strategies for start-up founders to learn how to comply with the employer–employee relationship requirement. Please contact us with any questions.