For the last several months, foreign students in F-1 status and potential employers have been living in limbo. A federal district court invalidated the Department of Homeland Security’s rules providing additional time in Optional Practical Training for STEM graduates (graduates with degrees in Science, Technology, Engineering, or Math). The same court decision invalidated what has become known as the Cap Gap extension. On March 11, DHS issued a new rule, making some significant changes to the OPT STEM extension.
F-1 students are eligible for twelve months of Optional Practical Training (OPT) following graduation from a U.S. college or university. Under the new rule, STEM graduates may qualify for twenty four additional months of Optional Practical Training. (The invalidated rule had provided for a seventeen month extension.) Here are some of the details:
- The STEM degree must be from a U.S. school but it no longer has to be the most recent degree.
- The practical training must be directly related to the student’s STEM degree.
- The employer must be a participant in E-Verify, the government’s electronic verification system.
- The employer must sign a training plan. The training plan must identify the goals of the training opportunity, including the knowledge, skills, or techniques that will be imparted to the student, and an explanation how the goals will be achieved through the work-based learning process. The training plan must also describe the employer’s performance evaluation process and describe the methods of oversight and supervision.
- The duties, hours, and compensation for the practical training must be commensurate with the terms and conditions offered to similarly situated U.S. workers.
- The student must prepare a self-evaluation and the employer must sign the evaluation and submit the form to the school.
- The employer must attest that it has sufficient resources and personnel to provide the training; the STEM student will not replace a full time or part time U.S. worker; and the training will assist the student in reaching his or her training goals.
Optional Practical Training offers employers a low cost way to employ a U.S. educated foreign worker. The new rule creates a twenty four month extension beyond the regular twelve month OPT period, but it comes with strings attached.