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An Overview of the New 2016 STEM OPT Regulations

The new STEM OPT (Optional Practical Training) program took effect on May 10, 2016 and contains several new components that will affect qualifying employers. It is important to note that the new regulations only apply to those currently working on STEM OPT or seeking a grant of STEM OPT. The standard 12 month OPT program remains unchanged. Additionally, F-1 students granted a 17-month STEM OPT extension prior to May 10, 2016 and not seeking an additional 7 months of OPT under the new regulations will remain subject to the prior rules. The most significant changes are outlined below.
  • The new program increases the total OPT limit to 36 months for F-1 students with a qualifying U.S. STEM degree: An initial 12 months of OPT, followed by a 24-month extension of OPT.
  • The new program imposes a wage requirement that requires employers’ pay compensation commensurate with similarly situated individuals; and provides that employers’ may not displace U.S. workers.
  • The new program allows for site visits*, similar to those previously implemented in connection with the H-1B and L-1 programs. Employers’ are typically give 48 hours’ advance notice of a site visit, however, unannounced site visits may result from a complaint or other evidence of noncompliance.
  • The new program requires a formal Training Plan on Form I-983 containing both student and employer attestations. The Training Plan must contain information on the Student’s Role, Goals and Objectives, Employer Oversight, and Measures and Assessments.
  • The new program imposes new reporting requirements applicable to STEM OPT termination/resignation (the prior 2 day period has been extended to 5 days); and STEM OPT students must comply with six month reporting requirements to their DSO (Designated School Official), including information on where they are living and working.
  • The new program allows for travel eligibility while STEM OPT is pending and during the H-1B cap-gap period (even with an expired EAD). In the past, travel was restricted during this interim period.
  • The new program provides for two STEM OPT eligibility periods, based on distinct degrees, e.g., a Bachelor’s degree program followed by a subsequent Master’s degree program.
  • The new program expands the list of STEM categories. Students must check with their DSO to determine whether their degree is on the STEM Designated Program List (eligible degree fields are listed by their Classification of Instructional Programs (CIP) Code).
  • The new program increases unemployment limits under STEM OPT.
  • The new program provides for STEM OPT eligibility based on a prior U.S. accredited degree program, so long as the degree was acquired in the last ten years and is directly related to current employment.
  • The new program limits certain employment arrangements, making it more difficult for small businesses and consulting companies to meet the Training Plan and other eligibility requirements.
*We recommend that Employers’ maintain STEM OPT Compliance Folders to ensure compliance with the new regulations, in the event of a site visit by ICE (Immigration and Customs Enforcement). Designated School Officials are now required to report known Employer non-compliance under the new STEM program.
 
Please note that this Alert is not intended to constitute legal advice and is intended for informational purposes only. If you have specific questions about this program, please contact Madison | Piper PC.

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