New employer obligations
Employers must meet significant new obligations in order to employ an F-1 student during the STEM OPT period.
Before an application for a STEM OPT employment authorization document (EAD) can be filed, the employer and the F-1 student must prepare and sign a formal training plan and submit it to the student’s designated school official (DSO). DHS is expected to issue a new Form I-983, the Training Plan for STEM OPT Students, once the new regulation is published.
The plan must state the specific goals for the STEM OPT period and how they will be achieved; detail the specific knowledge, skills or techniques the employer will impart to the student; explain how the training is directly related to the student’s STEM degree; and describe how the student will be supervised and evaluated. The final rule clarifies that employers can rely on their existing training policies to satisfy the evaluation and supervision requirements, as long as their policies meet the requirements of the rule.
DHS originally sought to require employers to establish a formal mentoring process for F-1 students on STEM OPT, but dispensed with this requirement in the final regulation.
Employers must certify the following in the training plan:
- The terms and conditions of the STEM OPT employment – including compensation – are commensurate with those provided to similarly situated U.S. workers. Compensation information must be disclosed in the training plan.
- The STEM OPT student will not “replace” a full- or part-time, temporary or permanent U.S. worker. The proposed regulation would have required the employer to attest that no U.S. worker would be terminated, laid off or furloughed a U.S. worker.
- The employer has sufficient resources and personnel to train the student in the position.
- The training is directly related to the STEM degree and the offered position will achieve the objectives of the training plan.
The employer and the F-1 student must complete a performance evaluation after the first 12 months of STEM OPT and at the conclusion of the STEM program. Evaluations must be signed by the student and employer, and the student must submit the evaluation to the DSO within ten days after the conclusion of the review period. DHS originally planned to require evaluations every six months during STEM OPT, but opted for a reduced evaluation requirement in response to feedback from stakeholders.
The employer is required to notify the DSO within five business days if the F-1 student is terminated or departs the STEM OPT job; under prior rules, the employer had 48 hours to make this notification.
Changes in the training plan
Employers and students are obligated to notify the DSO “at the earliest available opportunity” if there are material changes to or deviations from the training plan. Material changes include a decrease in the F-1 student’s compensation that is not tied to a reduction in work hours; a significant decrease in work hours; any decrease in work hours below the minimum 20 hours per week (excluding time off pursuant to the employer’s leave policy); a change in the employer’s EIN due to corporate restructuring; or any change or deviation that renders the employer’s attestations invalid or the training plan inaccurate.
As under prior rules, employers must be enrolled and participating in E-Verify to employ an F-1 student in STEM OPT. The new regulation does not change this obligation but commentary to the rule specifies that the employer must participate in E-Verify at the location where the student will work.
The new regulation gives U.S. Immigration and Customs Enforcement (ICE) the authority to conduct on-site reviews to verify whether employers are adhering to their training plans and otherwise complying with STEM OPT program requirements. The agency will give employers 48 hours’ notice of a site visit, unless the visit is triggered by a complaint or other evidence of noncompliance.