Some Foreign Students Will Now Have More Time to Work in the U.S.

Authored by Diane E. Metzger

Mar 11, 2016

The Department of Homeland Security (DHS) has issued its Final Rule amending the regulations which provide Optional Practical Training (OPT) work authorization to foreign students who graduated from an accredited U.S. university in a Science, Technology, Engineering, or Math (STEM) field. The Final Rule, which will become effective on May 10th, increases the OPT STEM work authorization for such foreign students from 17 months to 24 months, signaling DHS’ continued recognition that a skills gap exists and that local businesses face a scarcity of qualified U.S. workers in the STEM fields.

The Final Rule also increases program oversight by requiring employers to provide formal training plans and wage protections for foreign student workers, and maintains the “Cap-Gap” relief provisions related to foreign students seeking to change from F-1 student status to H-1B visa status. The Final Rule also maintains that employers of OPT STEM workers must participate in the E-Verify program.

DHS received more than 50,000 comments on the proposed changes to this rule, showing the high degree of interest in this issue. The Final Rule is welcome news to businesses and foreign students alike, allowing more talented graduates the opportunity to utilize their skills in the U.S. for the benefit of U.S. businesses.

What this means for Employers:

Foreign graduates of U.S. universities are typically granted one year of work authorization in the U.S. allowing them to gain practical work experience in their field of study. Under the prior rules, foreign U.S. university graduates in the STEM fields were eligible to apply for an additional 17 months of work authorization, for a total of 29 months. Such students are now eligible for up to 3 years of work authorization.

This additional work authorization is very important as it will provide employers with additional time to apply for an H-1B visa for the student worker. As the demand for H-1B visas has increased greatly, the chances of obtaining an H-1B visa for a high-skilled foreign worker has become increasingly more difficult. The extension of this student-based work authorization will allow businesses to continue to employ these high-skilled foreign workers for a longer period during which time the employer can apply, sometimes several years in a row, for a chance to obtain an H-1B visa for the employee.

While the Final Rule is not an adequate fix for the insufficient number of H-1B work visas currently made available to businesses each year (85,000 annually), the rule will nonetheless provide employers with some short-term relief as they try to attract and retain much needed talent.

If you have any questions about hiring a foreign worker or any other employment-based immigration issue, please contact Diane E. Metzger.

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