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  • NACE Supports Proposed Rules: STEM OPT

    In November 2015, NACE joined with NAFSA and 10 other higher education associations to provide comments to U.S. Immigration and Customs Enforcement (ICE) on its proposed rules around STEM OPT.

    On October 19, 2015, the Department of Homeland Security (DHS) published  a notice of proposed rulemaking (NPRM) titled Improving and Expanding Training Opportunities for F-1 Nonimmigrant students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.  

    The proposed rule changes the STEM OPT extension by expanding the number of months allowed and imposing new requirements on both institutions of higher education and employers. The proposed rules apply only to the STEM OPT extension and not the first 12 months of OPT. 

    Proposed Changes

    Length of extension: The proposed rules lengthen STEM OPT from 17 months to 24 months. This benchmarks to the length of a National Science Foundation (NSF) grant as it will involve 12 months of regular OPT and 24 months of OPT STEM. If another and more advanced  STEM degree is earned, then another 24 months may be requested.

    STEM definition: To define STEM, DHS would defer to the U.S. Department of Education's Classification of Instructional Programs (CIP) in the categories of mathematics, natural sciences (including physical, biological, and agricultural sciences), engineering/engineering technologies, and computer/information sciences and related fields. (Note: NACE and its co-signers supported use of the CIP taxonomy as the basis for the degrees to qualify for STEM OPT extension, but urged DHS not to limit the STEM categories to those identified in 2009 Stats in Brief.)

    Mentoring and training plan: Employers will be required to incorporate a formal training and mentoring program. The student would prepare a formalized mentoring and training plan and then submit it to the designated school official (DSO). DHS would like a student to provide the DSO with an evaluation of program every six months.

    Expansion of STEM degree eligibility: Under the proposed rules, previously earned STEM degrees could qualify for the STEM OPT exemption.

    Required employer attestations and reporting requirements to protect U.S. labor: Under the proposed rules, the employer would have to attest that it has the resources and personnel to provide mentoring and training; will not lay off, terminate or furlough a U.S. employee as a result of provision of the STEM OPT opportunity; and that the experience will assist the student to attain his/her training objectives. Salary  would be reported on the mentoring and training plan; hours, duties, and wages have to be similar to those of U.S. workers. The DSO cannot recommend a student for STEM OPT extension if the attestations have not been provided the employer.

    DSO's new reporting requirements: Employers must notify the DSO within  48 hours after  a student terminates employment. Students must report to the DSO every six months to confirm Student and Exchange Visitor Information System (SEVIS) information.

    Additional Recommendations

    The comments offered by the dozen associations were largely supportive of and in line with the proposed changes. However, in a few cases, the comments recommended additional changes. Chief among them:

    • Provide extended OPT opportunities to all fields of study.
    • Ensure flexibility in STEM categorization.
    • Assign appropriate DSO review of mentoring and training plan.
    • Require appropriate wages and documentation; requirements should not be so onerous "as to dissuade employers that do not already participating in the H-1B program from participating in the STEM OPT program."
    • Ensure SEVIS functionality.
    • Hold foreign students harmless if the final rule does not meet the February 12, 2016, deadline set by the courts.

    Complete comments are available here