The Department of Homeland Security has recently published a proposed rule affecting F-1 foreign student employment with the comment period ending November 18, 2015.  This timeline should allow foreign students working pursuant to STEM extensions of their Optional Practical Training to remain employment authorized beyond the February 12, 2016 deadline set by a federal district judge in Washington D.C.  See our prior article for additional background on the lawsuit leading to these proposed changes and STEM OPT work permission generally:
The DHS proposed rule calls for several important changes to the current program for foreign student employees, including the following:

  • Lengthens the employment permission for STEM OPT from the current 17 month period to 24 months
  • Allows for one (1) additional 24 month STEM OPT extension for students who have subsequently enrolled in and earned another qualifying STEM degree
  • More clearly defines qualifying fields of STEM study
  • Requires employers to implement formal mentoring and training programs for STEM OPT employees
  • Requires employers to attest that:
    • the employer has sufficient resources and trained personnel to provide mentoring and training to the STEM OPT employee,
    • the employer will not "terminate, lay off, or furlough any full or part-time, temporary or permanent U.S. workers" in connection with employment of a STEM OPT employee, and
    • the STEM OPT employment will assist the student in "attaining his or her training objectives."
  • Allows students to use a previously eligible STEM degree to qualify for STEM OPT extension as long as the most recent (non-qualifying) degree was also from an accredited educational institution and the offered employment is related to the previously obtained STEM degree
  • Limits STEM OPT extension approvals to students with degrees from accredited institutions
  • Clarifies DHS's discretion to conduct on-site visits of worksites for compliance with rules related to employment of STEM OPT employees
  • Extends STEM OPT unemployment permission from maximum of 30 days to 60 days.

The proposed rule still requires participating employers to be enrolled in the federal E-Verify program and still permits continuous "cap gap" employment for F-1 students with timely filed H-1B change of status petitions.  Again, this proposed rule is not yet final but DHS anticipates it will be prior to the February 12, 2016 deadline calling for elimination of the STEM OPT program.

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