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STEM OPT RULES: AN UPDATE - February 14, 2020

Background

The Optional Practical Training (OPT) program allows F-1 students to work for 12 months after graduation (in most situations). F-1 students with U.S. degrees in science, technology, engineering, and math (STEM degrees) may obtain an additional two years in OPT status as long as the employer is using E-Verify (a voluntary program for I-9 compliance).


STEM OPT is only available to students with qualifying degrees in a STEM field. To apply for a STEM OPT, the F-1 student must first qualify for regular OPT and receive an employment authorization document (EAD). The STEM OPT application must be filed before the end of the regular OPT EAD. 


The employer of the student must also register for (and use as appropriate) E-Verify for the STEM OPT (which is not required for the regular OPT). Immigration & Customs Enforcement (ICE) is the agency that regulates the OPT program, including determining. However, U.S. Citizenship & Immigration Services (USCIS) adjudicates the EAD application (Form I-765).


Brief Overview of STEM OPT Process

To apply for a STEM OPT extension, the student and the employer complete the Form I-983 to describe the training program and how it relates to the STEM degree. The student (or attorney) completes the I-765 and (in most schools) submits it and the I-983 to the designated school official (DSO) for review. 


The DSO issues a form called an I-20 to recommend STEM OPT if all is in order. The student and the DSO sign the I-20. The I-20 is then included with other documentation with the I-765 to apply for the STEM OPT extension. So long as the application is received by USCIS before the regular OPT expires, a 180-day work authorization extension is granted.


The training must be at least 20 hours per week and must directly relate to the STEM degree. However, USCIS does not assess this point in granting or denying the EAD. Thus, an approved EAD is not the end of the story in immigration compliance.


Prior STEM majors may be used

Students may use a previous degree (not the most recent degree) to qualify for STEM OPT. The degree must have been granted by an accredited school within the last 10 years. The work must relate to the STEM degree to qualify for a STEM OPT.


Training plan

To qualify for STEM OPT, Form I-983 must be completed and signed by the student and the employer and given to the DSO who will authorize the STEM OPT. The form is not sent to the government but is retained for potential ICE inspection later. The DSO must have the form in time to recommend OPT and provide an updated I-20, which is required to be submitted with the EAD application. 


The instructions for Form I-983 provide information about completing the form. The focus is to document the “training” nature of the employment and how the work relates to the STEM degree. Note that the employer and the student commit to compliance with certain reporting obligations.


If the employer already has a formal training program, many of the questions on the form incorporate this information.


Even if no formal training program is in effect, a STEM OPT student is in entry-level employment, which involves training by its very nature. The form requires the employer to describe the training that happens on the job and how it meets the student’s expectations for career development.


Compliance and reporting requirements

The student commits under penalty of perjury to report to the DSO “at the earliest available opportunity:”

  1. If the employer is not providing the training described in the plan; or
  2. Any “material changes or deviations” from the plan.

The student also is confirming under penalty of perjury by signing the plan that the training opportunity is “directly related” to the STEM degree and that he/she:

  • Has read the plan; and
  • Understands that the STEM OPT may be revoked for noncompliance by the student or the employer.

The employer commits under penalty of perjury to report to the DSO:

  1. “[A]t the earliest available opportunity” regarding any material changes to the plan; and
  2. Within five (5) business days the termination of the student’s employment or if the student does not report for work for five (5) business days without consent of the employer.

The employer is also confirming several facts and making several representations under penalty of perjury by signing the form. Before explaining those, however, it is important to understand the two different parts of the form that the employer must sign: Employer Certification and Employer Official Certification.


Employer Certification - Section 4

The “Employer Certification,” Section 4 of the form, is signed by an “employer official with signatory authority” who is familiar with the student’s goals and performance, and who has the authority to make certain representations (described below).


Section 4 certifications are that the person who is signing:

  • Has read and understands the plan
  • Will ensure that the “supervising official” follows the plan
  • Will make all required notification (described above)
  • Will adhere to all regulatory provisions, which include ensuring that:
  • The training is directly related to the student’s STEM degree
  • The student will receive on-site supervision and training by experienced and knowledgeable staff
  • Enough resources and personnel are available to provide the training
  • The employer is prepared to implement the plan
  • The location identified in the plan is available for the training program
  • The student will not replace a full- or part-time, temporary or permanent U.S. worker
  • The terms and conditions of the training program are “commensurate” with the terms and conditions of similarly situated U.S. workers*
  • The training will comply with all applicable federal and state requirements related to employment.

*See additional information below.


Employer Official Certification - Section 6

The “Employer Official Certification,” Section 6 of the form, may be signed by the same person who signed Section 4. It also could be signed by another employer official with signatory authority. The difference is the nature of the representations made in Section 6 compared to Section 4.


Section 6 certifications are that the person who is signing:

  • Has read and understands the plan
  • Will follows the plan
  • Will conduct the required evaluations of the student
  • Will adhere to all regulatory provisions that govern the program (although they are not listed as in Section 4)
  • Will notify* the DSO regarding material changes in the plan
  • Will notify* the DSO if the student is not receiving appropriate training as described in the plan

*Notification at the “earliest opportunity.”


In certain situations, particularly in a smaller organization, it is possible that the same person will sign in both sections. In other organizations, it may be that the direct supervisor of the student would sign Section 6 but a department manager would sign Section 4. It could also be possible that an HR manager would sign Section 4. But unless the HR manager is conducting evaluations of the student, the HR manager would not sign Section 6.


Additional Reporting Requirements

Besides the reporting requirements mentioned on Form I-983, additional reporting requirements apply:

 

Students must send to the DSO:

  • Within 10 days, a report of a change of legal name, residential or mailing address, employer name, employer address, and/or loss of employment
  • Every six (6) months, a “validation report” confirming that the above information has not changed (within 10 days of the 6-month reporting date)
  • Two evaluations:
    • One “within 12 months of the approved starting date” (but the rules also say that it must be submitted within 10 days of the conclusion of this “reporting period” – so it could be submitted 10 days after the first anniversary of employment)
    • One “prior to” the conclusion of the training (but again the rules allow for reporting within 10 days of the conclusion of the training).

The evaluations must be signed by the “Employer Official with Signatory Authority” (it is unclear whether this is the Section 4 or Section 6 official).


If the evaluations are not delivered to the DSO in time, the student is considered not to be authorized for employment. Therefore, even if the evaluations are the student’s responsibility, the employer must track the evaluation dates and be sure they are submitted timely.


Material Changes

Besides simply keeping track of reporting requirements, employers and students will need to be aware that almost any change will require a report and probably an updated I-983 form.


Although not clear from reading the form, the rule says that “any change or deviation that renders an employer attestation inaccurate, or renders inaccurate the information in the Form I-983 . . . on the nature, purpose, oversight, or assessment of the student’s practical training opportunity” (in addition to the other named changes, such as new federal employer identification number) will trigger the requirement to sign an amended I-983 and submit it to the DSO.


Examples could include a new supervisor for the training, a change of job title in a department restructuring, a change in the job duties being performed, a change in job location, the retirement or termination of the employer official who signed the form.


To assist in compliance, prepare a training plan to encompass likely anticipated variations at the time of initial submission.


change in employer requires a new I-983. It would also require a new DSO recommendation. A new I-765 would not be required, however.


“Commensurate” Employment

The terms and conditions of the training must be “commensurate” to the terms and conditions of similarly situated U.S. workers, specifically regarding duties, hours and compensation.


While the rule in many ways encourages employers to distinguish STEM OPT as “training” rather than employment – such as by requiring a formal training plan – in this context the government is saying that the student is to be treated like a U.S. worker performing a similar “job.”


The point is to make sure that U.S. companies are not using STEM OPT students to undercut the wages of U.S. workers. STEM OPT does not have prevailing wage requirements like an H-1B, for example.


The rule says that if an employer has more than two U.S. workers employed in positions like the position being offered to the student as training, the internal pay scale may be used to determine the student’s wage.


If an employer does not currently have or has not recently employed more than two workers in similar jobs, then the terms and conditions of the training must be commensurate with those of other “similarly situated” workers in the geographic area. 


ICE has not issued guidance about how an employer should determine or document the “commensurate employment” requirement. 


Please note that “commensurate employment” applies to “terms and conditions,” which include duties and hours in addition to compensation.


Recordkeeping

The rule directs that all Forms I-983 will be kept by the DSO for now. Later, the government plans to have them entered in the SEVIS system that tracks foreign students.


We strongly recommend that copies of all documents submitted to the DSO be kept by both the employer and the student.


Compliance with the training plan will now potentially be a subject of inquiry if the student later immigrates and the government is reviewing his or her status. The DSO is required to keep the forms for three years only. A status inquiry could arise years after the DSO has appropriately discarded the forms.


Even when the form is uploaded to SEVIS, having a copy will be a defense against a data error or misidentification of a record or failure to find a record in SEVIS.


The employer should keep the I-983 as long it employs the student. The student should keep the I-983 until the immigration process is complete (“green card” or naturalization).


Site Visits

ICE may conduct on-site validation of the training plan upon 48 hours’ notice or with no notice if the visit is to investigate a complaint of noncompliance. 


This is another reason to document and keep records of STEM OPT students and have a policy for compliance.


As with all government investigations, an attorney should be notified and present.


Filing and automatic extension of employment

The STEM OPT extension application may be filed (received by the government) up to 90 days in advance of the regular OPT EAD expiration date. It may not be filed more than 60 days after the DSO recommends the STEM OPT on the I-20 form.


Upon timely filing, the OPT is automatically extended for 180 days. We recommend that the filing be done far enough in advance to obtain a receipt for the filing, which indicates that it was properly filed.


The 24-month STEM extension begins on the day after the regular OPT EAD expires regardless of the date of approval.


Additional STEM OPT periods possible

If a student gains another STEM-eligible degree at a higher level after completing a STEM OPT training period, another regular OPT and STEM OPT extension is available. However, only two STEM OPT periods are allowed per student. 


Unemployment

A student unemployed for too long violates F-1 status even if the EAD has been issued. For regular OPT the allowable unemployment period is 90 days. For the 24-month STEM OPT the period is 150 days. However, these days are counted in the aggregate. Any unemployment during the regular OPT counts toward the total 150 days for the new STEM OPT program.


Conclusion

ICE has recently announced its intention to conduct more STEM OPT site visits. We recommend that all I-983s be reviewed by competent legal counsel.



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