November 12, 2019

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New STEM OPT Program: the Good, the Bad, and the Ugly

The new STEM OPT program became effective on May 10, 2016, and represents a complete overhaul of how this program has operated since 2008.  For the uninitiated, STEM stands for Science, Technology, Engineering, or Mathematics; and OPT stands for Optional Practical Training.  As previously reported, F-1 students with qualifying STEM degrees are now eligible for a 24-month extension of OPT work authorization.

The new program’s most positive change is that it has lengthened the extension from 17 months to 24 months. But these generous provisions are accompanied by several new requirements for participating employers.

Employers should determine whether the benefit of a longer tenure with its existing student employees outweighs these new “bad and ugly” administrative burdens. Here are some basic facts and tips to help make that determination:

  • Under the new program, employers must complete the Form I-983 training plan.  This training plan must be completed by the student and the employer and should detail how the student’s job duties relate to the student’s STEM degree, as well has how the employer can contribute to the student’s professional development.

  • There is an annual self-evaluation requirement.  According to the new program, the student must complete an annual self-evaluation (similar to an annual performance evaluation) or will lose their status.  The employer must sign off on this evaluation. Employers should consider reminding students of this requirement.

  • The employer must make certain attestations.  Because of this, it is important to maintain documentation regarding the required attestations, including that the student is not replacing a US worker and that the student is being paid commensurate with similarly situated workers; the employer may even wish to consider making a memo to the file explaining the basis for the student’s wage.

  • There are reporting requirements. Employers and students are each subject to reporting requirements.  Employers should consider reminding students of their reporting requirements, such as checking in with the Designated School Official (DSO) every six months or so.  Both the  employer’s  and employee’s reporting requirements should be timely and should include reporting any material change to the student’s training plan as well as any material change in the student’s employment.

  • There may be site visits.  Employers must know and be prepared for the fact that Immigration and Customs Enforcement (ICE) has authority to make site visits with 48-hour notice, unless the visit is triggered by report of noncompliance. The scope of these ICE visits is generally limited to confirming STEM OPT employment and attestations and that the training plan is being followed.

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About this Author

Rebecca B. Schechter, Greenberg Traurig Law Firm, Northern Virginia, Immigration Law Attorney
Of Counsel

Rebecca Schechter focuses her practice on business immigration and compliance, representing multi-national corporations and companies, as well as individual clients. She has experience with all areas of employment-based immigration, particularly H-1B, L-1, O-1 and E-2 petitions, as well as outstanding researcher petitions and labor certification applications. Rebecca regularly assists GT clients with global immigration matters, including business and work visas to countries in Europe, the Middle East, Asia, and Latin America. She also works on state and federal I-9 and E-Verify...

703-903-7578
Kristen Ng, Greenberg Traurig Law Firm, Nortrhern Virginia, Immigration Law Attorney
Associate

Kristen W. Ng focuses her practice on business immigration and compliance matters. She advises individuals and companies on a wide range of immigration matters, including nonimmigrant and immigrant employment-based cases, citizenship issues (acquisition, retention and relinquishment) and investor cases (E-2 and EB-5). She communicates directly with clients, including HR managers, high-level executives, and employees to ensure comprehension of each respective immigration process and procedure and to collaboratively produce the best immigration strategy and approach for each individual matter.

703-749-1388