More "Work" for Everyone

Starting May 10, 2016, certain individuals who are in the United States in F-1 (international student) status will be able to "work" longer, via an extension of their current employment authorization. Currently, when F-1 students graduate, they are eligible to apply for employment authorization called "Optional Practical Training" (OPT). OPT generally lasts for 12-months and a student must be engaged in employment that is related to his or her field of study. In April 2008 the Department of Homeland Security (DHS) announced an option for students to seek an additional 17-months if the student received a U.S. degree in a science, technology, engineering, or mathematics (STEM) field and his or her employer was enrolled in DHS and the Social Security Administration's E-Verify program. In March 2016, DHS announced that it would replace the 17-month program with a 24-month program to take effect May 10, 2016. (The initial 12-month program would remain intact.) While this increases a STEM graduate's employment authorization from 12-months to 36-months in the aggregate, there are trade-offs and more "work" for the students, for the employers, and for the Designated Student Officers (DSOs) at the schools from which the students graduate. More "Work" for Students When an F-1 student graduates, he or she is eligible to apply for 12 months of employment authorization, upon recommendation by his or her DSO. This is available to all F-1 students, regardless of their fields of study. This option remains intact for everyone. Starting May 10, 2016, an F-1 student who has just completed a STEM degree, or at least completed a STEM degree prior to the current one, may apply for an additional 24 months of employment authorization if his or her employer is enrolled in the E-Verify program and all parties agree to a predetermined training plan (Form I-983) related to the student's degree. A traditional employer-employee relationship must exist. Therefore self-sponsorship is not eligible. An F-1 student may change employers, so long as all employers are enrolled in the E-Verify program and so long as the F-1 student notifies his or her DSO within 10 days of the change. An F-1 student however may not have concurrent employment, which is a departure from the 12-month OPT rules. An F-1 student must also sign under penalty of perjury that the student has reviewed, understands, and will adhere to the training plan; will notify the DSO if the employer is not providing the training as prescribed in the training plan; understands that DHS can revoke the employment authorization if the student is not in compliance with the training plan; and will notify the DSO of any material changes to the training plan and submit a modified training plan within 10 days of the change. The training plan itself is a joint product of the student employee and employer. The plan must provide the following:

• Activities in which the employee will engage and how such activities relate to the STEM degree;
• Specific skills, knowledge, and techniques the student will learn and apply;
• Training goals and objectives and how and when the student will accomplish these;
• Means by which the employer will provide oversight and supervision and by which the employer will measure the student's accomplishment of the goals and objectives.

In addition to the above, an F-1 student must conduct self-evaluations at the end of each 12-month period and have the employer sign off on the evaluation. Such evaluations must also be submitted to the DSO. More "Work" for Employers Under this new benefit, a traditional employer-employee relationship must exist. The employer must also have a Federal Employer Identification Number, must employ the the F-1 student for at least 20 hours per week, and must compensate the individual. An unpaid, volunteer position cannot be the basis for the STEM OPT extension. DHS's definition of compensation is broader than just wages, but the employer must compensate the F-1 student comparable to U.S. workers with comparable skills and experience and comparable job duties. Similar to the student, the employer must also attest to certain conditions under penalty of perjury. These include the fact that the employer has reviewed, understands, and will follow the training plan; will notify the DSO of any material changes; and will notify the DSO within 5 days of the termination or departure of the F-1 student. Additionally, the employer attests to the fact that the training plan is directly related to the student's STEM degree; the student will receive onsite supervision and training by the employer's staff; the employer has sufficient resources for carrying out the plan; the student will not replace a full-time, temporary, or permanent U.S. worker; the terms and conditions of the position offered to the student are commensurate to those of similarly situated U.S. workers; and the training plan is in compliance with all Federal and state requirements. The employer is also put on notice that DHS may follow-up on compliance via phone or site visits. More "Work" for DSOs While the training plan is mainly between the employee and the employer, the new plan engages the DSO throughout the process. The DSO by default acts as a monitor. Once the employer and employee have completed the training plan on Form I-983, the DSO acts must review the plan. If the DSO is satisfied with the plan, the DSO will need to issue a newly endorsed Form I-20 recommending the training plan before the student applies to DHS for the additional 24-months of STEM OPT employment authorization. Whenever there are any changes the employee and employer must notify the DSO within 10 days. Whenever the student leaves the employ of the employer, the employer must notify the DSO within 5 days. The take away from this is that while the new OPT STEM extension program allows for more employment authorization, there is tighter monitoring and more involvement by all parties - the student/employee, the employer, and the DSO. The above has been provided as educational information only. Each student and employer's circumstances are different; please consult Clark Lau LLC to see whether and how the above applies to you.