Changes Regarding OPT for STEM Students

The Department of Homeland Security just released changes to the optional practical training (OPT) for international students holding an F-1 visa, which will go into effect in May 2016. These changes apply to students earning degrees in so-called “STEM” fields: science, technology, engineering, or mathematics. For these students, the good news is that they can extend their OPT for an additional two years, beyond the standard 12 months. This additional time allows students to extend their employment and professional training, putting them in an even better position to apply for a H-1B, and ultimately a Green Card, if they choose.

At the same time, the new regulations come with tighter requirements and additional obligations. In general, these new regulations reflect an intention to ensure that the underlying goals of the program are being met. Some of these changes apply to the employee (the student), and others to the employer. I review some of the most significant changes below.

For the employee (student)

  • Annual self-evaluation: the employee must complete an annual self-evaluation, describing how the job is providing valuable training opportunities in their field of study. The self-evaluation must be reviewed by designated school officials, to ensure that the work is indeed relevant to the student's studies.
  • Reporting requirement: the employee is now under an obligation to report to the Department of Homeland Security any changes in their employment status that deviate from their Training Plan (see below).

For the employer

  • Formal Training Plan: the employer will be required to complete a formal Training Plan. This document must clearly specify the conditions of employment, including the employee's specific duties, hours of work, and salary.
  • Fairness to employee: the employer must certify that the student is paid a salary that is on par with the salary of similar workers, and that it has sufficient resources available to provide the employee with a genuine training opportunity that reflects their professional objectives.
  • Fairness to US workers: the employer must promise that the foreign employee is not replacing any US workers.
  • DHS oversight: the employer must submit to on-site inspections by the Department of Homeland Security, which are meant to ensure that the employer is meeting the program’s requirements. Generally, the DHS will be required to provide at least 48 hours notice before the visit.

Please contact us or call 415-221-2345 if you have any questions.

Vaughan de Kirby
California Immigration Attorney

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