STEM 24 Month OPT Extension: Changes, Challenges, and Compliance (Part 2 of 3)

This post is the second in a three part series of blog posts on the new STEM 24 month OPT extension regulations, which are in effect as of May 2016.

The first post in the series provides an overview of the new regulations, including a summary of what is changing and what is not.

In the second post, we will focus on the training plan requirement, and look at what types of employers the STEM 24 month OPT extension may best be suited for.

The final post in the series will look at compliance issues for both the student and the STEM OPT employer.

What is the STEM OPT Training Plan?

One of the key changes in the new STEM OPT extension regulations is the requirement that the student submit a formal training plan to their DSO. This training plan is to be completed using Form I-983, and is to be signed by both the employer and the student employee.

There are four primary components to the STEM OPT extension training plan (I-983):

  1. The student’s role: this section asks for a description of the student's duties and what skills they will apply.
  2. Goals and objectives: in this section, the student could outline what they are hoping to learn or what they are hoping to develop. For example, a student may say here that they plan to use tools x, y, and z, and apply those tools in ABC type of situation (inserting specifics for x, y, z, and ABC). The more concrete the goals and objectives, the better. These goals and objectives should be discrete and measurable.
  3. Employer oversight: the regulations say that if the employer has an existing training program, they can use that in this section. Otherwise, this section would generally include information about how the student will be supervised, including how often the student will meet with a supervisor or mentor, whether the student’s work will be reviewed before it is sent out or completed, whether the student is working independently, etc.
  4. Measurements and assessments: this section may include details about the types of tools that the employer will use to assess the student’s work. The student may keep a journal or detailed time sheets outlining the tasks they have completed for various projects, etc.

What Type of Employer is Okay or Not Okay?

The structure of the training plan suggests that a strong employer-employee relationship must be in place. At this point, there is no outright prohibition on the type of employer that may hire a STEM OPT student worker. However, there is strong language in the preamble of the regulation that indicates that because of the training requirement, the STEM OPT may not be appropriate for certain types of employers including volunteer situations, entrepreneurs, employment through temp agencies, and consulting companies. The preamble explains that in most of these situations, the employer either would not (likely) be able to meet the wage obligations, or that the employer would not be able to provide the required training. The preamble says this:

Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP’s April 23, 2010 Policy Guidance (1004–03).

It is critical that the employer pay close attention to the on-site training requirement. The employer must ensure that it is the employer providing the training, not another entity, and should maintain clear documentation of the employer-employee relationship as outlined in the training plan. Further, when the employer signs the I-983, the employer is attesting that the STEM OPT student is not replacing a full- or part-time temporary or permanent U.S. worker. This program is designed for training for US-educated STEM students, not to replace U.S. workers.

Please keep in mind that there are several changes to the new STEM OPT extension. Students should coordinate carefully with their DSOs to make sure that all requirements are met.

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