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Pursuant to recent Federal court litigation (discussed previously in TSA emails), USCIS has proposed a new rule for STEM (science, technology, engineering and math) optional practical training (OPT).  Basically the new rule will allow for a 24 month extension for STEM graduates to the basic 12 months of OPT provided to most F-1 student graduates.  This would give qualifying F-1 students a total of 36 months of OPT. 

The proposed rule is similar to the original STEM extension which was invalidated by the District Court in the D.C. Circuit in August 2015.  For example, the F-1 student’s employer must be enrolled in the E-Verify program for the I-9 Employers’ Sanctions requirements.  The proposed rule continues, and to some extent expands, the notification requirements for F-1 students and their employers regarding changing addresses, employers, and names, among others.

The proposed rule also contains several new aspects, some of which are troublesome at best although they are presented as positive changes.  For example, the basic requirement for all OPT grants is that the employment must be related to the degree just received.  The old rule continued that requirement so that the STEM extension was also required to be based on the most recent degree.  The proposed rule appears to help F-1 students in OPT by allowing the STEM extension for a “previous” degree. For example, if the F-1 student’s most recent degree is in Accounting, but she also has a previous degree in Engineering, in theory the STEM extension would be available.  However, in practice this raises a serious concern:  since the original grant of OPT must still be related to the most recent degree (Accounting in this example), the student would be required to find a new employer in the field of Engineering in order to obtain the STEM extension.  Put another way, if the student knows the STEM extension is available based on her Engineering degree, she would still have to work the first 12 months of OPT in Accounting.

The proposed rule also creates a new requirement called the Mentoring and Training Plan (MTP).  This plan has numerous requirements, all of which create new burdens for the STEM OPT employer, with perhaps the most troublesome being the requirement that an evaluation of the F-1 student’s progress under the MTP must be prepared  at least every six months of employment during the 24 month extension.  Therefore, in addition to the requirement that the MTP be prepared and submitted to the student’s most recent school before receiving the school’s recommendation for the STEM extension, the periodic evaluations must also be prepared and submitted to the school.  In short, USCIS is creating new ways for students, and their employers, to violate their status. And it will be interesting to see how the schools’ representatives object to various aspects of the proposed rule based on the tremendous burdens placed on them to assist in maintaining the students’ status up to three years after graduation. 

The proposed rule can be found in the Federal Register, Vol. 80, No. 201, at page 63376 (Oct. 19, 2015).  Comments must be submitted by Nov. 18, 2015.  

 

Tidwell, Swaim & Associates, P.C.

12770 Coit Road, Suite 700

Dallas, Texas 75251

972-385-7900
www.tsalaw.com

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