What You Need to Know About the New STEM OPT Regulations

As of May 10, 2016, all new STEM applications and all currently pending petitions will be processed under the new STEM OPT regulations, which extend STEM OPT to 24 months and include new employer requirements.

Employers will be required to demonstrate sufficient resources to train employees and show they are not replacing U.S. workers. Eligible employment will require at least 20 hours per week in training, an outlined training program directly related to the qualifying degree, and compensation that is on par with similarly situated U.S. workers. The new regulations will not require prevailing wage, but employers will still need to document how the wage was determined.

Structuring the Training Program – An Outline for Form I-983:

I. Student’s Role:
• Describe specific tasks, including skills and knowledge, related to the coursework
• Consider how tasks build on knowledge through degree
• Describe timeframe to master skills and progression of acquisition
• Describe different phases of the training

II. Goals and Objectives:
• Name specific objectives in relation to the student’s specific skills
• Describe projects where student will use these skills

III. Employer Oversight:
• Student coordinating a project in conjunction with supervisor
• Frequency of student-supervisor meetings
• Does supervisor review and sign off on work product?

IV. Measures and Assessments:
• How does the employer measure success and progress toward goal?
• Detail types of projects to be done independently
• Have student keep a journal noting new techniques used or new insights developed

Some employers may have similar training programs already in place. It is recommended employers work with a knowledgeable attorney to review training plans before submission to the student’s DSO (Designated School Official).

Any material changes, such as a change in site, would require submission of a new I-983 to the DSO.

Overview of Critical Changes to STEM OPT
• 24-month STEM instead of the previous 17-month
• Employer needs to show there is a training program in place for the student
• Onsite training supervision by the employer who signs the I-983 must be present
• Keep an Employer Compliance Folder containing goals and objectives, progress meetings, and the process for determining wages. Be prepared for onsite visits to certify adherence to the training requirement.
• Self-evaluation reviews as part of the I-983 to be completed by STEM employee and signed by the employer annually.

Please Note: During a site visit, HSI (Homeland Security Investigations) will confirm consistency between employment and I-983 training plan and confirm STEM OPT is still employed.

What is staying the same?
• 180-day automatic OPT extension after timely filing
• No changes to H-1B Cap Gap relief timetable

Other Notable Changes:
• Two lifetime STEM OPT opportunities (not consecutively but option to do STEM twice – for example – after a BA and after a MA)
• Expansion of STEM categories
• Wage requirement (compensation must be commensurate with similarly situated positions)
• 60-day filing window after DSO recommendation
• New Training Plan requirement with Student/Employer attestations
• New SEVIS Reporting Portal – Update began on May 13 to align with STEM OPT changes

For more information on these changes and for further assistance, please contact our office to schedule a consultation with one of our knowledgeable attorneys.

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