Updates to Employment Rules for Foreign Students in the U.S.

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Allison Williard, Associate Attorney at Fragomen, reviews important legal updates specific to the eligibility of foreign students working within the US.

The F-1 student visa allows foreign nationals to enter the United States as a full time student at an accredited academic institution provided the student is enrolled in a program of study that culminates in a diploma, and that other criteria are met. After an F-1 student has completed one year of academic course work, he or she is eligible to participate in three types of off-campus employment: Curricular Practical Training (CPT), Optional Practical Training (OPT), and Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT).

In response to recent litigation, the U.S. Department of Homeland Security (DHS) issued substantially revised guidelines for the STEM OPT program, which took effect on May 10, 2016. The new STEM OPT program expands work authorization for eligible F-1 students, studying in a qualifying STEM field, for up to 36 months of OPT employment. The OPT employment includes 12 months of initial OPT and an additional 24 months of STEM OPT, which is an increase from the previous 17 month STEM OPT extension. Students who were granted a 17-month STEM OPT extension under the earlier rules may seek an additional 7 months of work authorization, provided that the following conditions are met: (1) the current STEM OPT expires on or after October 7, 2016; (2) the OPT employee has 150 days remaining of employment authorization on STEM OPT at the time the OPT extension application is filed; (3) the Employment Duthorization Document (EAD) application is filed between May 10 and August 8, 2016; and (4) the requirements and obligations of the new rule are met.

In addition, the new rule imposes more stringent compliance obligations and increased enforcement on employers. Employers are now subject to mandatory training plans and evaluations for F-1 STEM students. Training plans must state the specific goals for the STEM OPT period, how the goals will be achieved through the job, how the training is directly related to the qualifying STEM degree, the knowledge and skills the employer will impart on the student, the performance evaluation process, and the employer’s method of oversight and supervision. The new rule mandates that the STEM OPT students may not replace U.S. workers and that the F-1 student’s compensation must be commensurate with compensation paid to employer’s similarly situated U.S. workers. Employers must report any material changes from the training plan, such as a significant decrease in work hours, to the Designated School Official at the "earliest available opportunity." Employers must also participate in E-Verify at the location where the student will work. Finally, employers are subject to onsite compliance inspections by the U.S. Immigration and Customs Enforcement (ICE) to confirm adherence to training plans and other STEM OPT program requirements.

For more information on how the new regulation may affect your foreign student, please see Fragomen’s immigration alert, "The New STEM OPT Program: What Employers Need to Know," available here.

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