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DHS Submits New STEM OPT Rule for Comment

Today, October 19, the Department of Homeland Security submitted a proposed rule modifying the existing optional practical training (“OPT”) available to certain students with degrees in science, technology, engineering, or math (“STEM”) to the Federal Register for a 30 day comment period ending November 18, 2015. 

The new STEM OPT proposal is similar to the old rule that allowed STEM graduates an additional 17 months of OPT. However, the new rule adds both additional benefits and employer requirements for all individuals and companies utilizing OPT. Specifically, the new rule proposes the following changes to the OPT program:

  1. Lengthened STEM OPT Extension: F-1 STEM students who have elected to pursue 12 months of OPT in the United States will be able to extend the OPT period by 24 months (instead of 17 months).

  2. New Mentoring and Training Plan Requirement: Employers will now be required to implement a formal mentoring and training plan as part of the OPT.

  3. Previous STEM degrees eligible: Graduates from U.S. universities who hold previous U.S. STEM degrees and will be working in a STEM approved field (per the new DHS list).  

  4. U.S. Worker Protection: Employers will now also be required to attest that the duties, hours, and compensation will be commensurate with similar U.S. workers’, that the sponsoring company has the resources (financial and personnel) to support the OPT worker, that no U.S. worker will lose his or her position due to the OPT worker, and that the OPT assists the student in attaining training objectives.

  5. Accreditation and Compliance: STEM OPT will be limited to schools accredited by an agency recognized by the Department of Education and employers enrolled in E-Verify. DHS will also obtain discretion for site visits at worksites to verify compliance with the training and resources requirements. 

The new rule directly addresses the issues raised when the U.S. District Court for the District of Columbia vacated the previous rule due to DHS not following proper procedures. DHS has now published the new rule with plenty of time before the judge’s six month stay expires February 12, 2016. There should continue to be no impact on currently issued F-1 OPT. Please contact your Mintz Levin attorney with any questions on new applications and employer eligibility. 

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