A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Saturday, August 6, 2016

Employer Obligations Under the New 24-Month STEP OPT

On March 11, 2016, the Department of Homeland Security (DHS) published new regulations to expand the STEM OPT program from 17 months to 24 months.  The new regulations became effective on May 10, 2016 and provide for a transitional plan for certain students to apply for a 7-month OPT extension between May 10, 2016 and August 8, 2016.  

The optional practical training program (OPT) provides employment authorization for foreign students on F-1 visas upon graduation from an academic program.  The regular OPT program provides 12  months of employment authorization. For students who have earned degrees from U.S. colleges in Science, Technology, Engineering or Mathematics (STEM) fields, they are now eligible for 24 months of additional employment authorization.  

For employers who hire employees under the STEM OPT program, they should be aware of their obligations including the following: 

  1. E-Verify:  As before, the employer must be e-Verified throughout the employment period. E-Verify is an online system implemented by the federal government for employers to verify employees' eligibility to work in the U.S.
  2. Training Plan:  The employer and the student trainee must prepare and execute a formal training plan (Form I-893) that identifies learning objectives and a plan for achieving those objectives. The employer must ensure that the employment opportunity is directly related to the qualifying STEM degree or major field of study.
  3. Supervision and Training:  The employer must have sufficient resources and personnel available to supervise and train the student employee at the specified work location(s).
  4. Offsite Employment / Multiple Work Locations: The training plan requires that the student receive "on-site supervision and training by experienced and knowledgeable staff."  If an employer has multiple job sites the employer must ensure that it has sufficient resources and personnel to supervise and train the student employee at each job site.  However, for employers such as consulting firms that place employees at third-party client job sites, it will be difficult for them to meet this requirement unless they also have other experienced employees working at these job sites. 
  5. Non-replacement of U.S. Workers:  The employer must ensure that the student trainee will not replace U.S. workers(s) in any way or fashion.
  6. Equal Terms and Conditions of Employment:  The student trainee under the STEM OPT program must be treated in the same way as other similarly situated U.S. workers in terms of duties, work conditions and compensation.
  7. Evaluations:  STEM OPT students are subject to an annual self-evaluation requirement, under which the student must report to the Designated School Officer (DSO) his or her progress under the training plan. The student’s employer must sign the self-evaluation prior to its submission to the DSO. 
  8. Notification of Changes:  The employer is required to notify the DSO of early termination of a student employee's STEM OPT employment within 5 business days.  Any material changes in the training plan must be reported to the DSO by submitting an amended I-983 with the student employee. Material changes include any change in federal tax ID number, work location, reduction in hours below 20 hours per week, substantial changes in salary and job duties, etc. 
  9. Cooperate in Site Visits:  The DHS may conduct site visits to companies which employ STEM OPT students.  Unless violations have been reported, DHS will normally provide employers 48- hour notice. Additionally, employers may also be contacted by phone or email to verify employment information of the STEM OPT employee.  Employers should assign specific personnel to act as point of contact for all STEM OPT matters, and keep records of all related documents in order to facilitate government verification. 

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