On October 19, 2015, the Department of Homeland Security (DHS) proposed to amend its F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. The comments are due by November 18, 2015. In addition to improving the integrity and value of the STEM OPT program, this proposed rule also responds to a court decision that vacated a 2008 DHS regulation on procedural grounds. The proposed rule includes changes to the policies announced in the 2008 rule to further enhance the academic benefit provided by STEM OPT extensions and increase oversight, which will better ensure that students gain valuable practical STEM experience that supplements knowledge gained through their academic studies, while preventing adverse effects to U.S. workers.
For ready reference, we have compiled below a summary of the major provisions of the regulatory action. As compared to the 2008 IFR, the proposed rule includes the following changes:
• Lengthened STEM Extension Period for OPT. The proposal would increase the OPT extension period for STEM OPT students from the 2008 IFR’s 17 months to 24 months. The proposal would also make F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level eligible for one additional 24-month STEM OPT extension.
• STEM Definition and CIP Categories for STEM OPT Extension. The proposed rule would more clearly define which fields of study (more specifically, which Department of Education Classification of Instructional Program (CIP) categories) may serve as the basis for a STEM OPT extension. The proposal also sets forth a process for public notification in the Federal Register when DHS updates the list of eligible STEM fields on the Student and Exchange Visitor Program’s (SEVP’s) Web site.
• Mentoring and Training Plan. The proposal would require employers to implement formal mentoring and training programs to augment students’ academic learning through practical experience, intended to equip students with a more comprehensive understanding of their selected area of study and broader functionality within that field.
• Previously Obtained STEM Degrees. The proposal would permit an F-1 student participating in post-completion OPT to use a prior eligible STEM degree 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. Additionally, in order for such a student to be eligible for the STEM OPT extension, the employment opportunity must be directly related to the previously obtained STEM degree.
• Safeguards for U.S. Workers in Related Fields. To guard against adverse effects on U.S. workers, this proposal would require terms and conditions of a STEM practical training opportunity (including duties, hours, and compensation) to be commensurate with those applicable to similarly situated U.S. workers. In addition to requiring a related attestation in the Mentoring and Training Plan, an employer would also be required to attest that: (1) The employer has sufficient resources and trained personnel available to provide appropriate mentoring and training in connection with the specified opportunity; (2) the employer will not terminate, lay off, or furlough any full- 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 opportunity assists the student in attaining his or her training objectives.
• School Accreditation and Employer Site Visits. The proposal would enhance the academic benefit and oversight of STEM OPT extensions by (1) generally limiting eligibility to students with degrees from schools that are accredited by an accrediting a