Under the latest STEM optional practical training (OPT) extension rules that came into effect on May 10, 2016, and which increase the OPT extension program from 17 to 24 months, USCIS added additional requirements. One of the most important of these is the training plan that is to be filed on the Form I-983.
Before applying for a STEM OPT extension, a STEM OPT student must complete, sign and submit the Form I-983 Training Plan to the DSO of the school for its recommendation of OPT extension. The STEM OPT student and the prospective employer must collaborate to complete the form. The student must complete the first “Evaluation of Student Progress” portion of Form I-983 within 12 months of the listed STEM OPT start date. At the end of the STEM OPT extension, the student must conduct a second, final assessment. Once the evaluations are complete, the student must obtain signatures from his employer and return the form to the DSO.
The content of the Plan shall include the following:
- Identification of goals, including knowledge, skills or techniques imparted;
- An explanation of how goals achieved;
- A description of the evaluation process;
- A description of the methods of supervision; and
- An explanation of how training directly related to STEM degree.
The Plan also imposes obligations on employers intended to protect the terms and conditions of employment for U.S. workers. The following are the attestations on Form I-983:
- The student’s practical training is directly related to the STEM degree that qualifies the student for the STEM OPT extension and the position offered to the student achieves the objectives of his participation in the training program;
- The student will receive on-site supervision and training, consistent with the Plan, by experienced and knowledgeable staff;
- The employer has sufficient resources and personnel to provide the specific training program set forth in the Plan and the employer is prepared to implement it;
- The STEMP OPT extension student will not replace a full- or part-time, temporary or permanent US worker.
- The terms and conditions of the STEM practical training opportunity – including duties, hours and compensation – are commensurate with the terms and conditions applicable to the employer’s similarly situated US workers; or if the employer does not employ and has not recently employed more than two similarly situated US workers in the area of employment, the terms and conditions of other similarly situated US workers in the area of employment; and
- The training conducted pursuant to the Plan complies with all applicable Federal and State employment requirements.
The key aspects of these obligations are that the employer pay the F-1 student wages commensurate with similarly situated US workers and that no self-employment or volunteering is allowed. Although more restrictive than before regarding the wage equity component of the plan, the new rules does not require the employer to comply with the prevailing wage requirements of the H-1B petition. However, some employers may find the absence of a bright line rule on wages disconcerting and hopefully USCIS will provide more guidance in the future.