The USCIS has issued a new rule (effective May 10, 2016) extending work authorization for some foreign students who have graduated with STEM (Science Technology Engineering and Math) degrees from US institutions. Qualifying foreign students can apply for a total of 36 months of work authorization, instead of the current 29 months. The rule is designed to benefit many entities and populations. Employers will benefit by being able to secure educated workers to advance the employers’ research, innovation, technology, and projects. Foreign students will benefit by having the opportunity to apply what they learned in school and receive practical training in their fields. Schools will benefit by being able to attract and retain foreign students, which in turn will enrich the educational culture and add to the economy with tuition payments and student expenditures.
But there are numerous obligations and restrictions to the new program, for all involved, the employers, schools, and students. And not all STEM graduates will qualify for the work authorization extension.
Who Is Eligible for the New STEM Work Authorization Extension?
Currently, foreign students are granted 12 months of work authorization called Optional Practical Training (OPT). It can be used before or after graduation (as authorized by the school), although the vast majority of students use it for the 12 months after graduation. Starting May 10, 2016, foreign students who have graduated with STEM degrees from accredited schools and who are in F-1 (foreign student) OPT status can apply to extend their OPT work authorization an additional 24 months (STEM Extension). This is an increase from the current 17 month STEM extension. Further, to qualify for the STEM extension, the student must have a job with an employer enrolled in E-Verify, and that job must be directly related to his/her degree major. Additionally, the new rule has added a new obligation – the employer and student must draft and comply with a formal, written training plan identifying learning objectives and a plan for meeting those objectives. The US government may conduct site visits (with 48 hour notice) to ensure compliance with the training plan.
Another change under the new rule – generally foreign students whose are in F-1 OPT status based on a non-STEM degree can apply for a STEM Extension based on a previously obtained STEM degree, if both the current and prior degrees were from accredited US schools, and the rest of the STEM Extension requirements are met.
Additional Employer Obligations & Restrictions for the STEM Extension
The employer will have many reporting obligations if it employs a foreign student with a STEM Extension, including the following. The student must complete an annual self-evaluation regarding the progress of his/her training, and the employer must sign this evaluation. The employer must report any changes in the student’s employment status, training plan, and terms and conditions of employment, including changes in learning objectives or duties, substantial changes in compensation, and changes in hours or place of employment. This limits the flexibility employers previously had in employing F-1 OPT students. The employer must also attest that it has the resources and personnel to provide the training stated in the training plan. This restriction can hinder and discourage small employers from hiring STEM Extension students. Further, the employer has to certify that the foreign student will not replace a US worker, and the training opportunity will help the student attain his/her training objectives.
The student must be scheduled to work at least 20 hours per week, and there must be a bona fide employer-employee relationship. This precludes staffing agencies from employing those with STEM Extensions.
No Self-Employment & No Volunteer Work
The new rule effectively precludes those with a STEM extension from pursuing self-employment. As mentioned above, the rule requires that there be a bona fide employer-employee relationship. The Department of Homeland Security (DHS) has interpreted this to mean that the student cannot be the employer and cannot make the required attestations and administer the required training plan. Also, the employer must pay compensation to the student that is commensurate with those similarly employed. This precludes those with STEM Extensions from obtaining volunteering work to gain experience.
What If A Student Has a STEM Extension or OPT Now?
A student’s OPT work authorization is evidenced by an EAD (Employment Authorization Document) card. If an F-1 student is currently in his/her 17 month STEM extension, the EAD card will remain valid for the dates on the card. S/he may apply to extend the EAD card for an additional 7 months under this new rule if s/he can meet various requirements, including filing for the extended EAD card by August 8, 2016, drafting a Training Plan with an E-Verify employer, and having at least 150 calendar days remaining on his/her current 17 month STEM Extension.
Pending EAD card applications will be adjudicated based on the 17 month STEM Extension rule, not the new 24 month STEM Extension rule, through May 9, 2016. Starting on May 10, 2016, the US Citizenship & Immigration Service (USCIS) will issue Requests for Evidence (RFE’s) to anyone with then-pending STEM Extension EAD applications asking the student if s/he wants to apply for the new 24 month STEM Extension. If s/he does, s/he will have to show that all requirements are met under the new rule, including the training plan.
There are many intricacies to the new rule, and many obligations and restrictions. Please contact Berin S. Romagnolo, if you would like to discuss this new rule or how it could impact you, your employees or students.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2016 Posternak Blankstein & Lund LLP. All rights reserved.
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