The New STEM OPT Training Plan: What Do I need to know?

Screen Shot 2016-07-08 at 10.05.15 AM.pngUnder the new rules that went in effect on May 10, 2016, all students seeking STEM extensions for additional OPT time must have a training plan that is developed by them and their employer.  Below are some important points to keep in mind about the new training plan requirement

1.    Plan is Collaborative in Nature

Unknown.jpegFirst, employers and students must develop the plan together.  It is a collaborative process that, as stated below, must take into account the students education, and how the employer can help enhance that education through training and working.

However, that being said, there are certain parts that just the employer needs to complete and certain parts that just the student needs to complete.

2.     Intent of the Plan

 

Unknown-1.jpegThe intent of the plan is to show how the program the employer has developed for the student will help he student “achieve” their objectives for work-based learning.  Basically showing how the work is related to the STEM major of the student and how it will help them get real world experience in that area.  Each plan will be different as it is based on the Student’s major and future plans as well as by the employer’s business and the position that the student will be placed in.

It is important to also note that one of the attestations made by the employer and student is that the training opportunity is directly related to the STEM degree that qualifies the student for the OPT extension.

3.    Progress Evaluations

Unknown-2.jpegThere must be a mechanism in place to evaluate the progress of the student in meeting the goals of the training plan.  The student prepares a self-assessment and the employer must sign off on this assessment.  The assessment must then be given to the DSO within the applicable timelines (10 days of the deadline).  An evaluation must be done at the 12 month mark in the training and the 24 month mark of the training.

Part of the training plan (and the attestations made by the employer) includes having a person designated as supervisor/trainer for the student.  Most likely it would be this person who would sign off on the plan as they can best testify to the fact that the student has been meeting the goals of the plan.

4.  Changes to the Training Program

Unknown-3.jpegPart of the application process requires the employer and student to affirm under oath that they will alert the DSO to any material change in the training plan or material deviation from the training plan as soon as possible.  What would this include?  Changing the position or duties of the trainee most likely would fall within this definition as would changes to compensation, and changes in the employer or employer structure.  There are certainly other changes that would be considered material (as well as deviations) in general this may be an area in which it is better to inform the DSO of a chance rather than trying to explain after the fact why you feel it was not a material change.

5.  Conclusion

The training plan is an important piece of the OPT extension.  While there has been no announcement as of yet I am sure that USCIS will start enforcement actions around this requirement.  Perhaps they will send out officers to review the plan, visit the work site and ensure the student is doing what is required and the correct resources have been allocated.  It behoves employers and students to ensure that the training plans they develop meet the requirements of the law and regulations.  Please let us know if we can provide any assistance in that regard.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

STEM OPT: The Fight is Not Over Yet

UnknownWith the publishing of the new STEP OPT rule just last month, many thought that this could be the end of the lawsuit brought against USCIS over this issue.  The Court overseeing this case found that USCIS had violated procedures surrounding the rule making of that last OPT extension, which lead to USCIS redoing the rule making process and the new rules.

Unfortunately, the group that brought the lawsuit Washington Alliance of Technology Workers (Washtech), through their attorneys from the Immigration Reform Law Institute (ISLI), is still appealing the ruling of the lower Court which ruled that the ISLI only had jurisdiction to sue over the STEM OPT rule and not all OPT as well as the part of the ruling that agreed with USCIS that the definition of student could include those not in school any more at the time (without the benefit of such a definition USCIS could not implement any OPT rules).  Washtech and ISLI maintain that all OPT rules were developed to circumvent protecting for the US workforce required for such visas as the H-1B (payment of a prevailing wage, no lockouts or strikes, etc.).  They also maintain that OPT hurts US workers, especially recent US graduates.

Before discussing the impact of the continuation of the law suit, I would like to state that the allegations that OPT or other immigration programs hurt US workers or graduates is disproved by all research in this area.  All research shows that areas with higher level of immigrants who are working create more jobs, have a lower unemployment rate and a better economy that those with less immigrations.  (See this article for example).

If the appeals court agrees with Washtech it could call into question all OPT Rules and lead to USCIS having to stop issuing OPT documents unless and until the US Congress changes the statute. Considering the divided nature of the current congress, the chances of them getting together on this issue is very small, which means if the Court rules that the OPT laws are no longer valid, that ruling will not be changed by legislation anytime in the near future. This would hurt not just foreign graduates, but the US economy as well, as fewer students would come to the US and many fewer students would stay after their studies. As discussed above, this decrease in immigration would actually act to hurt our economy.

Hopefully the Appeals court will uphold the lower court ruling and the OPT rules will remain in place.  We will, of course, update you as news develops in this case.

STEM OPT Transition Information

Unknown.jpegFor those who are wondering about the new STEM rules, and how the old rules will be stopped and the new rules will be implemented, keep reading.

If My Application Was Filed On Or Before May 9, 2016, Under Which Rules Will It Be Adjudicated?

USCIS will transition into the new rules as seamlessly as possible.  First, all current and pending OPT requests will continue to be processed as 17 month extensions up until May 10, 2016 (so through May 9, 2016).  Any 17 month extensions already granted, or granted from the date the new rule was published through May 9, 2016 will remain valid as of May 10, 2016 and beyond for their full term (i.e. until the date listed on the EAD).  These 17 month EADs will not be affected by the new rules in any way.

However, any application for a 17 month extension filed before May 9, 2016 that remains pending as of May 10, 2016 (and, of course, any application filed on or after May 10, 2016) will fall under the new rules.  In other words, filing the application  before May 10, 2016 does not guarantee your application will fall outside the new rules.  Any application pending on May 10, 2016 will be converted to a request for a 24 month extension, and, in due course, a Request for Evidence will be issued for the new I-983 training plan and other additional documentation needed to process a request for the 24 month extension

What If I File My Opt Request And Ask For 24 Months, But I File Prior To May 10, 2016?

If you file a request under the new rules, but send in the filing early, USCIS will automatically convert your request to a 17 month extension request.  Of course, per the above, if that application remains pending on May 10, 2016, it will be converted back into a 24 month request.

If I Have A 17 Month Opt Card Can I File An Extension To Get The Extra 7 Months?

Yes.  Those who received 17 months of OPT, if you qualify for the 24 months under the new rules, can file a request to extend their OPT for the extra 7 months.  You will need to file the extension request with all the required documents for a normal 24 months OPT request, including the training plan, etc.  This is not an automatic extension, you must file for the extension and be approved under the new rules.  This is important to remember especially in context of deciding whether to withdraw a current OPT request so that you fall under the new  rules.  

There are many inherent dangers to withdrawing an OPT request, especially in terms of the strict timelines in which to file the OPT request (which are not reset if you withdraw your initial request) and you should discuss this with your school and immigration attorney before making a decision.  In most cases, just continuing on with the current application and filing a request down the road may be the safest, and only, option.

 

USCIS Issued New STEM OPT Rules on October 19, 2015

On October 19, 2015 USCIS issued a proposed rule regarding STEM OPT extensions for those in F-1 status.  If you were not aware, USCIS was sued in Federal Court over the previous rules as there was no formal rule-making on those.  The Court gave USCIS until February of 2016 to go through the formal rule making process.  This is the first part of that process.  However USCIS did not just propose the same rule they had in place.  They have proposed a rule that is substantially different than the previous version.  Below is a summary of most of the provisions listed in the proposed rule:

  1. First, and foremost, the STEM extension would now be 24 months, not just 17 months.  Those who already are on the 17 month extension can apply for another extension for the remaining 7 months (there are certain restrictions in terms of when you need to file to recapture this 7 month period).  In addition, those who use the 24 month STEM extension, then enroll to receive another STEM degree get another 24 month STEM extension.
  2. USCIS also has further defined what STEM categories are eligible for the extension.  They provide a list which includes physical sciences, biological sciences, agricultural sciences, computer sciences, engineering and related.  However the lists do not include the Heath and social sciences areas.  USCIS will maintain the list and publish updates in the Federal Register whenever they make changes to the list
  3. As previously required, the employer for the STEM extension must by e-verify registered.
  4. Employers will also have to develop mentoring/training program for STEM extension students, and will have to have an evaluation system in place as well.
  5. Those who previously completed a STEM degree and are now completing a non-STEM degree can take advantage of the STEM extension.  However, this is true ONLY if the employment opportunity is directly related to the STEM area.  In addition, the school must be an accredited school
  6. USCIS is now also requiring certain requirement to protect US workers.  The job opportunity must offer the same duties, pay, benefits, etc. that are offered to similarly situated US workers.
  7. Only schools that are accredited by an organization recognized by the US Department of Education are eligible to provide the STEM extension to their students.  In addition USCIS may conduct on site evaluation at the work sites to ensure that a proper learning environment is being provided and the mentoring/training plan is in place and being followed.
  8. The proposed rule also ups the amount of time a STEM OPT student can be unemployed.  Under the old rules,  a student can be unemployed up to 90 days during the 12 month OPT period and an additional 30 days during the STEM extension. USCIS would raise the 30 day STEM Extension period of permissible unemployment to 60 days, giving a total of up to 150 days of unemployment.
  9. The proposed rule keeps the requirement for employers to update SEVIS with any changes of employment, and also indicates that USCIS will be allowing students to update some of the information themselves as well.
  10. Lastly, USCIS is including the cap-gap extension for the students in OPT status who file an H-1B application that is accepted by USCIS, but whose OPT expires prior to October 1, the first day the new H can begin.  The cap-gap extension will allow those students to receive an automatic extension of their OPT to October 1.

USCIS has indicated that the expect to finish the rule-making prior to the District Court’s deadline.  I hope the above helps you to understand the changes that will most likely be coming in the next couple of months.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.