Proposed STEM OPT Rule – Key Provisions

On Monday, October 19, 2015, the U.S. Department of Homeland Security published a new proposed regulation on F-1 STEM OPT. This new proposed regulation addresses the recent court ruling to invalidate the current STEM OPT program.

KEY PROVISIONS OF NEW PROPOSED STEM OPT RULE include:

  • STEM OPT would be extended from 17-months to 24-months
  • A student who uses STEM OPT and then enrolls in a higher degree could become eligible for a second life-time 24-month STEM extension (but not a third)
  • The U.S. Department of Education Classification of Instructional Programs (CIP) list of majors that is used to determine STEM eligibility may be extended to include new major codes
  • Students who have completed a higher degree in a non-STEM major from an accredited U.S. institution may be able to apply for STEM OPT extension based on completion of a prior STEM major earned at an accredited U.S. institution within the past 10 years
  • The authorized period of unemployment for students on STEM OPT would be extended from 120 days to 150 days
  • STEM Employers will need to implement a formal mentoring and training program using the new Form I-910, and evaluate the employee’s progress based on the training plan
  • STEM Employers must attest:
    • to the terms and conditions of the STEM practical training, including that duties, hours, and wages are comparable to similar U.S. employees
    • they have the resources to provide mentoring and training
    • that they will not lay off U.S. workers as a result of hiring a STEM OPT worker, and
    • that the training must be in the student’s major field
  • DHS has the discretion to conduct on-site inspections at the employer work site to evaluate compliance

What remains the same:

  • STEM OPT employers must be enrolled in USCIS’ E-Verify program and to report certain changes in the STEM OPT student’s employment
  • Students must report to DHS any changes to their names or addresses, as well as any changes to their employers’ names or addresses. Students would also be required to periodically verify the accuracy of this reporting information.
  • Students on STEM OPT would qualify for “cap-gap” protection if they have a timely-filed pending or approved H-1B petition filed on their behalf
  • The Designated School Official (DSO) at the F-1 sponsoring school will update and maintain the student’s Student and Exchange Visitor Information System (SEVIS) record to (1) recommend STEM OPT if the student qualifies, (2) report OPT employer name, address, employment dates, (3) report updates to the student’s address or contact information, (4) report interruptions to OPT employment, (5) complete a SEVIS validation every six months to confirm student’s continued participation in STEM OPT

Please note: The provisions of this new rule are proposed and not final.

DHS has indicated that unless the court makes a new ruling on the case, it will continue to adjudicate applications for STEM OPT extensions under the current 2008 interim regulations until the existing regulation is vacated on February 12, 2016.

In the event that a new final rule is not published before February 13, 2016, STEM OPT extensions may be suspended indefinitely until a new STEM OPT ruling is finalized.

Boston University ISSO will continue to actively monitor the status of the STEM OPT lawsuit and the progress of the STEM OPT rule and will update students as soon as information becomes available.