Corporate Immigration Law News

As many of you are still reeling from abysmal H-1B cap results as a result of a record number (236,000) of H-1B cap-subject filings this year, we must now turn our attention immediately to define viable alternative visa options for those foreign graduates who were not fortunate enough to be selected in the H-1B lottery.  The purpose of this update is to discuss recent regulatory changes, effective May 10, 2016, to one of the most common alternatives to the H-1B classification, the STEM/OPT extension.

In the past, one of the common alternatives to the H-1B classification for employers with recent foreign national university graduates who were not selected in the H-1B lottery, but who possess qualifying Science, Technology, Engineering or Math degrees (so-called “STEM” degrees), was the ability for that foreign graduate to apply for a 17 month STEM extension of their Optional Practical Training (OPT) work authorization.   Until recently, the requirements to secure this STEM/OPT extension were simple and did not require any extensive involvement of the employer.  Specifically, the regulatory requirements were as follows:

1. The graduate completed and received a qualifying STEM degree from an accredited U.S. college or university that related to their employment; and
2. The employer was registered with E-Verify.

Unfortunately, the days of the straightforward STEM/OPT work authorization extension process are now behind us.  In exchange for agreeing to lengthen the STEM/OPT period of work authorization (from 17 months to 24 months), there is a new, somewhat rigorous regulatory scheme, effective tomorrow, May 10, that now requires additional cooperation from the employer by way of an affirmative filing made by the employer.

More specifically, beginning on May 10, any qualifying STEM graduate wishing to apply for his/her STEM/OPT extension is responsible for the demonstrating the following:

1. The employee received his/her STEM degree from an accredited college/university that is Student and Exchange Visitor Program-certified (SEVIS registered);
2. The employee must have previously been granted regular OPT work authorization that remains effective;
3. The employee must apply for the Form I-765 employment authorization renewal/extension up to 90 days before the student’s current regular OPT period expires;
4. The employee must apply for the Form I-765 employment authorization renewal/extension within 60 days after the student’s Designated School Official’s (DSO) enters into SEVIS the DSO’s recommendation to extend the OPT; and
5. The employee must make certain his/her employer is registered with, and actually utilizing, the E-Verify system.

Please note:  If your 17-month STEM/OPT extension was already approved, in order to request the balance of the 24 month extension (the additional 7 months), you must have at least 150 calendar days remaining prior to the end of your 17-month STEM/OPT extension at the time you file the Form I-765.

In order to obtain the DSO’s OPT extension recommendation (#4 above), the graduate, together with the employer, must now complete and submit to the DSO the newly-minted Form I-983 Formal Training Plan for STEM OPT Students.  The Form I-983 is a mandatory application and requires both the employee and employer to satisfy several new training and verification requirements.   With regard to the employer, the Form I-983 requires you to attest, under penalty of perjury, the following:

1. The employer is providing an internship or job opportunity that is commensurate with those of similarly-situated U.S. workers in terms of duties, hours, and compensation;
2. The employer possesses sufficient resources and trained personnel to provide the appropriate training;
3. The employment of the student will not replace any U.S. worker;
4. The training program will assist the student in the student’s (degree-related) training objectives;
5. The employer agrees to provide adequate notice to the DSO of any material changes to the student’s participation in the program (i.e. pay, work hours, corporate changes, terminations, etc.);
6. The employer and student agree to prepare and submit a detailed and goal-oriented formal training plan measuring the employer’s oversight and the training measures and achievements reached by the student related to their STEM degree; and
7. The employer will agree to provide annual reviews of the students’ formal training plan confirming the achievements reached under the program.

Here are the benefits of the new STEM/OPT regulations:

1. An increased STEM/OPT work authorization period from the previous 17 months to 24 months (thus allowing these students potentially 3 “bites of the apple” in the H-1B lottery with an aggregate post-graduate OPT period of 36 months);
2. It allows those currently employed under a STEM/OPT extension to remain employed for the duration of the 17 month EAD extension and also permits them to file for an additional 7 month extension (provided additional requirements are met);
3. It extends the period of permissible unemployment to 150 days during the combined 36 months of regular and STEM OPT work-authorized period;
4. It permits the student to remain employed for up to 180 days while the STEM/OPT extension request is pending if the current EAD card expires; and
5. It allows students currently employed pursuant to the standard 12 month OPT period based on non-STEM degrees to be the eligible to file for the 24 month STEM/OPT extension if that student previously received a U.S. STEM degree.

On the downside, these newly-minted STEM/OPT regulations have added reporting requirements for the student and employer to maintain compliance with these STEM/OPT training programs (under the threat of DHS audit).  Some of the most salient reporting requirements include the following:

1. The STEM/OPT student must report to his/her DSO multiple times per year;
2. The employer must prepare (and sanction) a formal training program and plan for submission to DSO for approval; and
3. The employer must report material changes to any approved training plans.

The next few days, weeks and months are bound to be hectic and unsettling to your foreign graduate OPT and STEM/OPT employees who will, no doubt, be inquiring as to whether your business will assist them in navigating these new regulations.  While we will be reaching out separately to each of our clients to discuss options for your foreign graduates who were not selected in the H-1B lottery, we would strongly urge you to contact us for assistance with navigating these uncharted waters, especially completing and submitting the new Form I-983 Formal Training Plans.