New Regulation Imposes Stricter Reporting Requirements for Employers of Foreign Students

8 CFR 214 & 8 CFR 274, also referred to as “The STEM OPT Rule”, recently went into effect on May 10, 2016 impacting foreign university students seeking an extension of post graduate training. Foreign students participate in Optional Practical Training (OPT) during the period after matriculation and are permitted to remain in the US to gain practical work experience and on-the-job training. Institutes of higher education in partnership with employers cite that experiential learning is an integral component of the education experience.

One component of the new rule allows foreign students to supplement their academic knowledge with work experience in STEM (science, technology, engineering, math) fields. First introduced by the Department of Homeland Security in a 2008 interim rule, the new regulation also sets provisions to ensure the integrity of the program for students, institutions of higher education, employers, and U.S. workers through increased program oversight.

The implications for employers of foreign students include:

• Employers will now be subject to Department of Homeland Security visits to ensure compliance while remaining in good standing with the E-Verify program;
• Employers must attest that they (1) have sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) that the foreign student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) that the opportunity helps the student attain his or her training objectives.

Some of the implications for students:

• Foreign students already granted 12 months of practical training may apply for a 24 month extension with the Department of Homeland Security;
• A student may be eligible for up to two separate extensions over the course of his or her academic career upon completing two qualifying degrees at different educational levels;
• Requires each student and employer to create a formal training plan;
• Reporting requirements include an annual self-evaluation requirement, a six-month validation requirement to confirm certain biographical, residential, and employment information.

While some universities have raised concerns about how to allocate school resources to meet new reporting and record keeping requirements and the Department of Homeland Security’s plan to enforce the requirements, many support the rule’s efforts to improve the experience of foreign students and extend their ability to gain experience in fields where there are recognized shortages of U.S. workers.