Editor’s note: The following is a sponsored commentary by Fragomen associate Janora L. Hawkins.
With President Donald Trump focused on raising the skill level of immigrants entering the U.S., many lawmakers agree that some low-hanging fruit exists in the form of foreign graduates coming out of U.S. universities.
American companies, especially in the high-tech and manufacturing fields, often struggle to find the right people, and keeping more foreign grads here means the U.S. can reap the benefits from the training its world-class universities provide to foreign nationals.
But some hidden compliance hurdles exist, especially when trying to certify these coveted graduates for work beyond the commonly used 12-month optional practical training, or OPT, period.
And last year brought some significant changes to the practice of hiring grads who are in the U.S. on an F-1 visa.
The initial OPT authorization is relatively straightforward. The company contacts the student, who works with someone called a designated school official to get what’s called an employment authorization document through the United States Citizenship and Immigration Service.
The employment must be directly related to the student’s field of study and includes a great deal of flexibility in the type of employment that may be undertaken (i.e. multiple employers, part-time work, volunteer, self employment, etc.).
What’s harder is getting alternate work authorization after the year-long OPT period is over.
The traditional method is by H-1B visa, for which USCIS offers a yearly quota of 65,000, with an additional 20,000 for U.S. master’s (or higher) graduates. However, the demand generally exceeds the supply, and there is usually only about a one-third chance that a new graduate will be selected within the cap to be able to continue working in the U.S.
Given the problems faced by U.S. firms finding the right workforce, the Department of Homeland Security (DHS) in 2008 authorized an additional period of employment for individuals who graduate in a STEM field.
The original program allowed for a 17-month extension of the initial 12 months of OPT authorization (for a total of 29 months). The process for obtaining an extension was the same as the initial application, with the only requirement being that the individual’s bachelor’s or higher field of study must have been in a STEM eligible field (DHS also published a list of applicable fields) and the employer be enrolled in E-Verify (an Internet-based system that ensures an employee has authorization to work in the U.S.)
A legal challenge to the rule-making process followed by the DHS in 2008 resulted in an even longer period of authorization. In a May 2016 rule change, DHS stipulated that the OPT period for STEM graduates would be extended to 24 months, for a total of 36.
Here’s what companies have to abide by in order to avail themselves of this opportunity:
-E-Verify Enrollment: Like the original STEM rule, in order to employ a graduate who requires a STEM extension, the employer must be enrolled in E-Verify and be in good standing.
-Formal Training Plan: Employers must complete the Form I-983, Training Plan for STEM OPT Students. In doing so, employers must provide a detailed account of job duties the student will perform as well an explanation of the type of supervision the student will receive. In signing the training plan, employers are attesting that the company has the resources to train the student, that the student won’t replace a full-time U.S. worker, and that the students’ training objectives will be fulfilled by their time at the employer.
-Commensurate Opportunity: The new rule also contains a pseudo wage requirement. While it does not go so far as to require employer’s pay a prevailing wage, it does require that the OPT opportunity be commensurate with those of similarly situated U.S. workers in duties, hours, and compensation. Employers should be sure that an analysis of those in similar positions is conducted when making the offer of employment.
–Duty to Report Changes to University: Employers must report any material change in employment to the designated school official.
-Self Evaluation of Progress: Students must complete and submit to the DSO the “Evaluation of Student Progress” portion of the Form I-983 within 12 months of the listed STEM OPT start date. At the end of the STEM OPT extension, a student must conduct a second, final assessment. Once the evaluations are complete, the student must collect signatures from their employer and return the form to the DSO, who will keep it in the student’s physical student record. Student evaluations are a shared responsibility of both the student and the employer to ensure that the student’s practical training goals are met.
-Changing Employers: If your company is planning to hire an employee who is presently on a STEM OPT extension, your company must be enrolled in E-Verify (and be in good standing) before the student may begin working for pay. A new Form I-983 must be submitted to the DSO within 10 days of starting the new practical training opportunity.
Complying with the above procedures is crucial for employers. The Department of Homeland Security has indicated that enforcement will be closely scrutinized, and students are encouraged to report non-compliant employers. Further, U.S. Immigration and Customs Enforcement (ICE) may visit employer worksites to verify compliance with STEM OPT program requirements.
Employers who currently employ or who are considering employment of individuals in F-1 status who are in a period of authorized OPT should contact an immigration attorney to seek guidance regarding requirements.
With the H-1B cap right around the corner, now is a great time to begin discussing longer term sponsorship for those employees in F-1 status you wish to retain.
Janora Hawkins is an associate in the Atlanta office of immigration firm Fragomen, Del Rey, Bernsen & Loewy.
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