DHS Extends Student Employment Opportunities

In response to the nearly a thousand comments it received, the United States Department of Homeland Security (DHS) amended its regulations governing the Optional Practical Training (OPT) for certain international students in the Science, Technology, Engineering, or Mathematics (STEM) fields. OPT is an immigration condition in which qualifying international students holding an F-1 visa may obtain temporary employment based on their education in a STEM or STEM-related field.

This process began late last year, when the capitol’s District Court vacated the 2008 Interim Final Rule (IFR) in the case of Washington Alliance of Tech. Workers v. U.S. Department of Homeland Security, —F. Supp. 3d. —, 2015 WL 9810109 (D.D.C Aug. 12, 2015). The IFR was the first instance in which the DHS actively proposed to extend all qualifying F-1 students’ OPT periods. Under the IFR, students were afforded only a 17th month extension of their OPT statuses. However, the court held that the DHS failed to follow the procedural “notice-and-comment rulemaking” and gave the DHS time to fix their mistake by opening the IFR to public opinion. Although the final terms of an ensuing litigation regarding this matter are still unclear, it is apparent that the new rule must take into affect on May 10th, 2016. If not, thousands of international students will be limited by the lack of opportunities available in their fields.

In comparison to the IFR, the DHS’s favorable modifications increase transparency and efficiency during a student’s OPT extension period. Once the rule goes into effect on May 10th of 2016, the DHS will replace the previous 17-month STEM OPT extension and permit F-1 STEM students to extend their OPT period by 24-months. In addition, a candidate may also apply for an OPT extension based on a previously earned STEM degree awarded to them by a currently accredited university. A list of eligible degrees may be found on the Student and Exchange Visitor Program’s (SEVP) website. It is important to note that regardless of when he or she received the STEM degree, the student must pursue employment in a field related to that specific completed STEM degree. On the occasion that F-1 students under the 24-month extension lose their employment, the rule grants them a total of 150 days to acquire new employment.

Improving and increasing effective management, the new extension will require employers to implement mutually beneficial training programs as well as guaranteed employee protections for international students and U.S. workers. Companies that wish to employ an F-1 STEM student must also participate in the electronic employment eligibility verification program, E-Verify.  The rule additionally requires stricter reporting requirements. An employer must report any changes made in their STEM student’s employment to the Designated School Official (DSO) within five business days. Further deterring employer fraud, the DHS also plans to conduct site visits to ensure that employers are genuinely fulfilling all the program’s requirements. Reporting requirements will not be solely limited to employers. During a six-month long validation period, STEM OPT students and their DSOs will be required to comprehensively substantiate every single piece of evidence related to students’ “biographical, residential and employment information.”  Students are required to communicate progress and other changes in employment to their DSOs in annual self-evaluations. While this may seem like a tedious process for all the parties involved, it is an absolutely necessary precaution to preserve the integrity of the students OPT status.

Supporting the local job force, the new rule also enumerates conditions to expansively protect not only future international students but also current US employees. Greatly benefitting U.S. workers, the key provision prevents employers from unfairly replacing U.S. workers with international STEM workers.

Adding to existing qualifications, the DHS will also place universities under a higher level of scrutiny by only accepting the OPT extension request of students with degrees form accredited university. Accredited universities must also be SEVP certified at the time students submit their application. The DHS clarifies that campus outside the U.S. will not be considered for SEVP certification.

The bottom line: The Department of Homeland Security’s decision to lengthen STEM OPT extensions allows current students the opportunity to further their STEM degrees in the U.S. and to increase their likelihood of attaining high-earning positions post graduation. Providing the Cap-Gap relief these students need, it safeguards the student’s educational opportunity, the employer’s security and the extension’s integrity. Although many may feel dissuaded by the process at first, the new rule will definitely encourage high-achieving international students to work in U.S. and help our universities remain globally competitive over the long run.

The information in this article was respectfully borrowed from the Federal Register/ Volume 81, Number 48/ Friday March 11, 2016/ Rules and Regulations. Please do not act and/or plan to act based on the text of this article. This piece is meant solely for educational purposes and exclusively caters to the interest of our readers.

The author, Divya Prasad, is a legal assistant at the Law Office of Aparna Davé. She holds a B.A. in Political Science and Global Studies from the University of Maryland, Baltimore County.


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