In the midst of a lawsuit challenging an administrative aspect of the 2008 STEM OPT extension regulations, the Department of Homeland Security (DHS) has just published the proposed revised STEM OPT extension regulations. Read on for the highlights of this exciting development!
Why do we have revised regulations?
The Washington Alliance of Tech Workers filed suit earlier this year against DHS challenging the 2008 STEM OPT extension regulations. On August 12, 2015, the US District Court held that DHS violated the notice and comment provisions of the Administrative Procedure Act (APA). As a result, the Court invalidated the 2008 regulations. As a result, DHS is now issuing new STEM OPT regulations so that the notice and comment provisions of the APA may be met. However, there are some key changes in the regulations from the 2008 version. Those changes are summarized below. The entire proposed regulation can be found here.
What is different about the revised regulations?
The key changes in the regulations include the following.
- The period of the STEM OPT extension will be 24 months, rather than 17 months.
- The STEM OPT student would be required to create a formal Mentoring and Training Plan in collaboration with the employer. This plan would be submitted to the student’s DSO (designated school official) before the DSO could recommend the STEM OPT extension. The training plan would require specific training goals and a description of how the goals would be achieved.
- Part of the Mentoring and Training Plan would include an attestation, to be signed by the employer, which affirms:
- That the employer has sufficient resources and personnel available and is prepared to provide appropriate mentoring and training in connection with the specified opportunity;
- That the employer will not lay off, terminate or furlough a US worker as a result of hiring the STEM OPT student; and
- The student’s opportunity furthers the student’s training objectives.
- The employer would also be required to provide duties, hours, and compensation commensurate with those provided to similarly employed US workers. The proposed regulations do not specify a particular source that the employer must use to determine what “commensurate” compensation would be, but the regulations state that the employer “would be able to refer to prevailing wages” provided by the Office of Foreign Labor Certification (the same source typically used for H-1B petitions).
- Students would be permitted to use a previously-obtained STEM degree (from an accredited school) for a STEM OPT extension. In this case, the extension would only be available for students who will use the STEM skills from the prior STEM degree during the extended OPT period.
The STEM OPT extension will still require the employer to participate in E-Verify.
How can I comment on these regulations?
The comment period is open until November 18, 2015. Complete instructions on how to submit comments are available in the link provided above.
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