Asked and Answered . . .

Alexandra LaCombe on OPT Program and Foreign Students

Last November a memo by Department of Homeland Security Secretary Jeh Charles Johnson outlined proposed executive action on immigration including some suggested changes to the Optional Practical Training program. The DHS OPT extension rule implemented just before the H1-B season this year, allows F1 students with degrees in Mathematics, Engineering, Science or Technology and currently working under the OPT program to extend their tenure from 12 months to 29 months. Alexandra LaCombe is the managing partner of Fragomen, Del Rey, Bernsen and Loewy's Troy office. Her practice includes all aspects of corporate U.S. immigration, including nonimmigrant visas, permanent residence, compliance issues and corporate restructuring. She is also an adjunct professor with the University of Detroit-Mercy School of Law, teaching Immigration Law within the University's innovative "Law Firm" practice curriculum.

Thorpe: Describe the proposed changes.


- STEM OPT extension for 24, up for 17, months, for a total of 36

- Further 24 months of OPT for subsequent higher STEM degree

- New list of qualifying STEM degrees to be published

- Eligible if hold prior STEM degree, even if most recent one does not qualify

- Health and social sciences degrees not included

- Degree-granting institutions must be accredited

- Significant employer burdens:

- Customized training program and designated mentor

- DSO review plan prior to endorsement

- Wage requirement

- No layoffs of US workers

- Funds and resources to train and mentor

- Training related to degree

- Evaluation every six months

- ICE site visits

Thorpe: What are the differences between OPT and H-1B?

LaCombe: OPT is Optional Practical Training, which allows students to work in the US in their degree specialty post-graduation. H-1B is a work visa status for individuals who work in professional specialty occupations (they do not need to be former students in the US).

Thorpe: What is a STEM extension and how does it work?

LaCombe: F-1 students who are in a period of post-completion optional practical training, have a qualifying U.S. science, technology, engineering or mathematics (STEM) degree, and will be employed by an employer that is enrolled in and uses the E-Verify program would be eligible for an additional 24 months of OPT, up from the current 17-month extension period. This would increase their OPT time to a total of 36 months, from 29 months.

Thorpe: What jobs are permitted and count as employment?

LaCombe: Professional jobs that are in the student's specialty according to the degree that they receive.

Thorpe: Can a student continue their education during employment?

LaCombe: Possibly, if compliant with the requirements of the educational institution in which they are enrolled and the degree program.

Thorpe: What are special concerns for employers?

LaCombe: To employ a STEM OPT extension beneficiary, an employer would be required to devise a customized training program and designate a mentor for each F-1 STEM student. The student's designated school official (DSO) would be required to review the plan and verify that the student's proposed employment is directly related to his or her STEM degree before the DSO could endorse the student for the OPT extension.

Each employer would be required to attest (1) that the compensation paid to the F-1 student during the STEM extension period will be comparable to what the employer offers to similarly situated U.S. workers; (2) that it will not terminate, lay off or furlough a U.S. worker as a result of the STEM OPT training opportunity; (3) that it has the funds and personnel resources to train and mentor the STEM student; and (4) that the training is directly related to the student's STEM degree.

Every six months during the OPT extension period, employers would be required to complete an evaluation of the F-1 student that documents the student's progress toward meeting the training goals set forth in the plan. Employers would be subject to site visits by Immigration and Customs Enforcement to verify that the student's activities are consistent with the plan.

The employer's obligation to register and participate in E-Verify in order to employ an F-1 during the STEM OPT extension period would be unchanged by the proposed rule.

The obligations set forth in the proposal would apply to employment during the STEM OPT extension period only. They would not apply to the 12-month post-completion OPT period.

Published: Thu, Nov 12, 2015