New rule extends employment term for international STEM students

by Elaine Young

The rules affecting how long international students in certain fields can work in the United States without changing their visa status will change on May 10.

Currently, when international students in F-1 visa status graduate with a bachelor’s, master’s, or doctorate from a U.S. school, they can work for one year, in a period called Optional Practical Training (OPT), in a job related to their major field of study. That training period is being extended for international students with science, technology, engineering, or math (STEM) degrees from U.S. schools.

Under current U.S. Citizenship and Immigration Services (USCIS) policy, students with STEM degrees are eligible to remain in the United States for an additional 17 months after their traditional one-year OPT, resulting in a 29-month total employment experience before they have to change to H-1B status. In years in which H-1B visa quotas are oversubscribed and USCIS conducts an H-1B visa lottery, the STEM extension is a significant benefit because it offers students and their employers more than one chance in the H-1B lottery.

But on May 10, the STEM OPT extension is increasing to a 24-month period of temporary training directly related to an F-1 student’s program of study on a list of approved STEM fields that is very similar to the current list.

As before, to hire an F-1 student with a STEM OPT extension, an employer must be enrolled in E-Verify. The F-1 student must work a minimum of 20 hours per week and can have more than one employer.

New paperwork requirements accompany the rule change. The 2016 final rule requires students and employers to submit a formal training plan to the school’s designated school official on a new Form I-983. The training plan must document specific goals of the STEM practical training opportunity and explain how those goals will be achieved through the employer, including details of the knowledge, skills, and techniques to be imparted to the student. The training plan also must include a formal performance evaluation process.

By signing the training plan, the employer also attests that the student will not replace a full-time or part-time temporary or permanent U.S. worker and that the student’s duties, hours, and compensation will be commensurate with those provided to similarly situated U.S. workers—meaning OPT cannot be a means of hiring cheaper labor.

For more information on the new rule affecting international students, see the April issue of Utah Employment Law Letter.

Elaine Young is an attorney with Kirton McConkie in Salt Lake City, Utah. She can be reached at eyoung@kmclaw.com.

About Utah Employment Law Letter:
Excerpted from Utah Employment Law Letter written by attorneys at the law firm of Kirton McConkie. The contents of the UTAH EMPLOYMENT LAW LETTER are intended for general information purposes only and should not be construed or relied upon as legal advice or a legal opinion on any specific facts or circumstances. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact the attorneys at Kirton McConkie..
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