Hiring STEM OPT employees: What businesses need to know

Everything you need to know about the DHS’s STEM Optional Practical Training program — and what is required to hire and employ STEM OPT student workers.

International students who want to supplement their U.S. degree(s) and academic knowledge often turn to Optional Practical Training (OPT) programs to gain on-the-job experience, especially in STEM fields. The Department of Homeland Security’s (DHS) OPT programs allow international students to extend their stay in the U.S. without changing their immigration status by extending their F-1 visas for 12 months, with a 24 month extension available after the initial 12-month extension has ended, according to DHS’s Study in the States information site.

Here is a look at the STEM OPT program, how individuals can qualify for the program, and what companies need to know about sponsoring individuals for the STEM OPT.

What is STEM OPT?

STEM Optional Practical Training (STEM OPT) is an extension of the U.S. DHS’s non-immigrant F-1 student visa. The STEM OPT allows those with a science, technology, engineering and/or math degree to extend their stay in the U.S. for up to 24 months after the student’s initial post-degree-completion OPT, which is for 12 months. The current 24-month extension period of temporary training replaced the previous 17-month STEM OPT extension as of May 10, 2016.

Eligible students with an F-1 visa who finish their STEM studies and have completed an initial post-completion OPT have the option to apply for a STEM OPT extension that directly relates to their field of study; however, DHS requires a 60-day grace period between completion of an initial post-completion OPT and a STEM OPT extension.

What are the qualifications for STEM OPT?

To qualify for a 24-month STEM OPT extension, an F-1 student participating in an initial period of regular post-completion OPT must meet the following criteria: The student must have a degree in an eligible STEM field from a Student and Exchange Visitor Program (SEVP)–certified school that is accredited when the student submits their STEM OPT extension application to USCIS. Applicants can use the DHS’s Study in the States school search tool to find an SEVP-certified school.

Students must pursue their STEM OPT and any extensions through an employer that is enrolled in USCIS's E-Verify employment eligibility verification program. Students must also select a STEM OPT employer that will provide the student with formal training and learning objectives, and will allow for a minimum of 20 hours per week of work for the student.

Which STEM degrees are eligible for STEM OPT?

DHS's STEM Designated Degree Program List includes all STEM fields qualifying an F-1 student for a STEM OPT extension. DHS previously determined that a “STEM field” is a field included in the U.S. Department of Education’s Classification of Instructional Program (CIP) taxonomy within the two-digit series containing engineering (CIP code 14), biological sciences (CIP code 26), mathematics (CIP code 27) and physical sciences (CIP code 40), or a related field. All fields of study in the core STEM areas of engineering, biological sciences, mathematics and physical sciences are included.

The “related field” language in the STEM definition means that DHS may consider a degree to be in a STEM field even if it is not within the CIP two-digit series for the four identified core areas. Ultimately, DHS makes the determination whether a field of study falls within the CIP codes and whether the field meets the definition of a “STEM” or related field.

In general, related fields involve research, innovation or development of new technologies using engineering, mathematics, computer science or natural sciences, which includes physical, biological and agricultural sciences, according to DHS.

How does STEM OPT relate to the H-1B visa program?

The F-1 visa, under which international students attend college or university in the U.S., and the H-1B visa, under which foreign nationals can work in the U.S., are separate and unrelated visas. However, the two are not mutually exclusive; many students who are currently working under OPT or STEM OPT have also applied for an H-1B visa under the lottery system or plan to do so in hopes of landing a U.S.-based job.

Even if students applications are selected in the H-1B lottery, that doesn’t guarantee they’ll receive a visa. Sometimes, clerical errors in the application, downsizing or elimination of positions by hiring companies or other factors could mean that a petition for an H-1B visa isn’t approved. In some cases, if students are not picked to receive an H-1B visa, or even if they’re selected but aren’t sure their application will be approved, they can use the STEM OPT program to continue working and extend their stay in the U.S.

What reporting requirements must sponsor companies follow?

Employers who hire STEM OPT students must follow specific reporting requirements and coordinate with a student’s Designated School Official (DSO). Students, employers and DSOs develop a formal training plan that encompasses the student’s term of employment. Any changes to or deviations from that plan must be reported to the DSO.

In addition, students must report to their DSOs every six months, and must validate their legal name, address, employer name and address, status of employment and practical training plan and experience, as well as complete a self-evaluation annually. If a STEM OPT student terminates or otherwise leaves their place of employment, employers have five business days to report that change to the DSO.

DHS has more detailed information about employer requirements at its Employer Reporting Requirements page.

Entrepreneurship and employer-employee relationships

F-1 students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing off on their STEM OPT training plan. That means F-1 students cannot start their own businesses.

STEM OPT applicants, however, can participate in a startup or small business so long as all regulatory requirements are met, according to DHS. The employer that signs off on the training plan must be the same entity that employs the student and provides the practical training experience, according to DHS.

In addition, employers must remain in good standing with the E-Verify system and have the resources to comply fully with the proposed training plan. This can often exclude small businesses, which are less likely to have the resources to comply with E-Verify or provide for a comprehensive training plan.

Third-party placement restrictions

In May 2018, USCIS reinterpreted the STEM OPT extension rule to require STEM graduates be placed in-house at their employer’s worksite only, barring them from working at a third-party client site. This change was especially worrisome for IT services companies and management consultancies that often placed STEM OPT employees to work on projects at a client site. Fortunately, industry pushback forced clarification, and while employers and students need to ensure their STEM OPT “training plans” are thorough and complete, it did not impact any F-1 visa holders or their employers, and STEM OPT students are currently still able to work at third-party client sites.

Prepare for the possibility of ICE site visits

It’s also important to note that, as Forbes reported in August 2019, Immigrations and Customs Enforcement (ICE) has begun performing site visits to question international students and company managers at employers where international students, including STEM OPT and STEM OPT extension students, work. While ICE has had the authority to perform such visits since May 2016, this is the first time such visits have been conducted, according to the Fragomen law firm quoted in the Forbes article.

“The inspection may include individual interviews with company personnel, a review and discussion of the foreign national’s training plan and its implementation, and a review of his or her skills and degree in relation to the STEM degree. ICE may also request to view F-1 trainee workspaces or receive a tour of the premises,” the firm explains in a post on STEM OPT worksite inspections.

During these visits, managers should expect to go through a similar process to review and answer questions about the student employee’s pay and training plan. Employers should also understand that these site visits pose greater risks to students than to the companies that employ them, as DHS can determine whether or not the students are complying with the law, and can deny, revoke or terminate their STEM OPT extension as they see fit.

Copyright © 2019 IDG Communications, Inc.

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