Originally published March 18, 2016
On March 11, 2016, the Department of Homeland Security (DHS) published a regulation that extends the period of work authorization from a current 17-month period to 24 months for foreign students who will be employed in STEM (science, technology, engineering and math) occupations by U.S. companies who participate in E-Verify.
While some U.S. companies may criticize the increased compliance burden, these companies should heave a sigh of relief especially with the limited probability of these students getting selected for an H-1B visa. Assuming that last year’s demand remains relatively the same, there is only a 30.5% chance of being selected for the regular cap. Foreign students who are eligible for STEM extensions will now enjoy a total of 36 months of practical training after graduation – 12 months of an initial work permit and an additional 24 months under the new STEM extension regulations. These students will now have additional opportunities to apply for H-1B visas while they continue to engage in employment related to their academic field of study.
Who qualifies for the new 24 month STEM extension and what are the key requirements?
- Foreign students who graduate from a U.S. accredited institution with a STEM-related degree
- Foreign students who are employed by a company that has enrolled in E-Verify, an on-line DHS program that requires employers to verify the work authorization documents of new hires (www.uscis.gov/e-verify)
- Foreign students who are employed by a company that agrees to provide a robust work-based training program related to the students’ academic studies. The company must institute oversight and supervision of the student and the student must provide periodic performance evaluations which are reported on a newly created government form (I-983) to designated school officials.
- The employer must agree not to replace any U.S. worker with the foreign student, and to provide wages and benefits comparable to other similarly situated U.S. workers employed at the work site.
- The employer understands that its compliance efforts may be monitored by DHS through unannounced on-site audit visits to determine employer maintenance of training program records and compliance with the regulatory requirements.
Are the new requirements burdensome for employers, academic institutions and foreign students?
Yes. However, employers should be able to cope with the new regulations in exchange for extended periods of work authorization for foreign student graduates. The new requirements require employers to have good entry-level job descriptions upon which to base their training program and there must be a nexus between the job training program and the student’s course curriculum. The employer must closely supervise its new recruits, and offer competitive wages and working conditions.
Academic institutions that offer solid educational programs and who see the benefit of recruiting foreign students – from a financial perspective as well as fostering intercultural exchange and providing rewarding academic forums – should not shirk from their added paperwork responsibilities.
Lastly, the foreign student who is offered an opportunity to augment their academic curriculum with work-based continued training should willingly comply with the added reporting requirements. The foreign student is required to complete periodic self-assessment questionnaires detailing the knowledge acquired, how the training program met specific goals and objectives, and providing timely reports to their designated school officials.
In conclusion, the costs associated with the new rule is a price worth considering. The exchange of increased oversight for extended employment opportunities provides benefits to both employers and students. We encourage employers to consult with their immigration attorneys to fully understand the requirements and the employer’s obligations with participating in the new STEM extension program.