As has been the case the last four years when the H-1B program has been oversubscribed, employers that lose the lottery panic and scramble to find ways to keep these dynamic, young, foreign workers. In an effort to address the H-1B problem, DHS has changed the regulations regarding OPT. Historically students on OPT were allowed twelve months of work authorization. In 2008, students with STEM (Science, Technology, Engineering and Math) degrees were permitted to extend their work authorization for an additional 17 months. On May 10, 2016, the STEM OPT extension was increased an additional seven months allowing STEM degreed students a total of 36 months of optional practical training.
Although the new STEM OPT rules allow employers and their would-be H-1B employees multiple bites at the lottery apple, they also impose several new requirements. The following provides a brief description of a few of the new features.
Employers Must Be E-Verify
As with the 2008 STEM OPT extension, the employer must participate in the E-Verify program for the STEM employee to obtain the 24 month OPT extension. A newly imposed amendment requires that the specific worksite employing the worker must use E-Verify.
Employer Must Develop A Training Program For Each STEM OPT Employee
As part of the new extension application, the employer must create a training program that states the specific goals for the STEM OPT period and how the employer and employee plan to achieve them. The plan should identify the skills, knowledge and techniques the employer intends to teach the worker and explain how the training and job duties are tied to the employee’s STEM degree.
The employer must provide compensation details and certify that the alien worker’s compensation align with similarly situated U.S. workers.
Initially the Department of Homeland Security aimed to have the employer and student provide evaluations every six months; however, the final rule reduced this requirement to twelve months. At the conclusion of the first twelve months of STEM OPT, the employer and employee must provide a performance evaluation to the designated school official (DSO) of the student’s school. At the end of the 24 month STEM OPT, a second evaluation must be completed.
On-Site Inspections by ICE
As part of the new rule, Immigration and Customs Enforcement (ICE) has the authority to inspect employer worksites to ensure implementation of the training program and conformity with all applicable regulations. ICE need only provide 48 hours’ notice prior to inspection. If the inspection results from a complaint, the 48 hour notice requirement is waived.
The 24 month STEM OPT extension program is a much-needed band-aid to temporarily help the employers and alien workers effected by the H-1B oversubscription problem; however, employers considering the new program must understand the added requirements and the consequences for not abiding by them.
To extend your STEM OPT employee’s work authorization, contact John Nelson or Jay Nuñez at 949-833-2616.