May 2016

New OPT STEM Extension Rule:  Effective Tuesday, May 10, 2016

The following only applies to “OPT STEM Extensions”.  This is where you can get extra time to work as a student, post-completion of a qualifying program (now two additional years; up from seventeen months—beyond and in addition to the standard, initial period of one year).  Older, retained requirements include:

• Employer E-Verify participation (https://www.uscis.gov/e-verify).
• Student has “STEM” Degree in field of science, technology, engineering, mathematics.
• CAP-Gap rule for students with timely filed H-1B petitions and requests for change of status (through successful H-1B, automatically extends EAD to 10/1 where it expires from time CAP filing window opens on 4/1 to 9/30).
• Where “timely filed” (before initial, one-year training period ends), get automatic six-month extension (over course of which time, the new card will issue, granting the rest).

New requirements/changes/best-practice recommendations:

• Training plan or program, completed by employer/employee, on Form I-983 (which USCIS can request to approve). Employers are responsible for completing Sections 3 to 6.  Schools are to verify completeness and that are reasonable.  Aims of the I-983:
  • Identify learning goals/objectives, plan for achieving, timeline(s).
  • Detail tasks/assignments, show how they relate to the qualifying degree.
  • Identify specific skills/technology/knowledge/techniques/expertise to be learned/applied.
  • Address/ensure appropriate supervision (how often will meet, frequency work checked, level of worker independence (want to be slim to none)). Must have sufficient resources to train.
  • Identify any and all worksite(s); form is site(s)-specific. Where does change, must update I-983; report to school.
  • Get employer to attest to non-displacement of temporary or permanent U.S. workers (whether full- or part-time) and that employer has sufficient resources/trained personnel available to provide training.
• Employer onsite maintenance of ICE compliance folder (stands for “Immigration and Customs Enforcement”; this is the immigration police). Generally giving limited notice (forty-eight hours; although none due where complaint surfaces or have evidence of non-compliance), ICE can show-up/ask to inspect/ask questions.  Presumably will want to verify consistency of duties performed to the training plan; and/or that person still employed (as must report when leaves or terminated).  Planning for “site visits”, employers should document:
  • That compensation is commensurate with similarly-situated, U.S. workers. Is not the same as the H-1B “prevailing wage” standard.  Should document how determined.  Other trainees perhaps good litmus.  Should closely compare to those performing similar duties, with similar educational backgrounds, employment experience, levels of responsibility, skill sets, and so on.  Where no comparable (or only two or less in role recently), industry standard the measure (companies of analogous size, similar industry, same geographical area).
  • That recruited for the position, and/or haven’t had layoffs (goes toward non-displacement).
• There is also a “validation requirement.” Every six months, the student must confirm status quo, even if no change (regarding biographical/residential information, employer name/address, employment status).
• Employer main reporting requirements:
  • Employment status: to school, within five business days, including where student is terminated or leaves or never shows-up. Take this seriously – schools are required to report noncompliant employers.
  • Material changes: do new I-983 (employer/employee together) and furnish to school where have material changes to or deviation from formal training plan. Examples:  change in worksite; FEIN (due to restructuring); compensation reduction (unless tied to less hours worked); significant decrease in hours; changes in employer commitments/student learning objectives, as documented in prior Form I-983.
• Student must also complete “annual self-evaluations” of progress (as part of the I-983); employer must review/sign. Mid-point evaluation within first twelve months of OPT STEM Extension cycle (by first year’s end); second/final one prior to conclusion of the twenty-four months (recapping training/knowledge acquired over complete training cycle).  Employer returns to student (signed/reviewed); student sends to school.  Practice pointer:  student can keep journal to help with these (noting new techniques/technology/applications used, how it’s going, discussing new insights on using skills in different contexts, etc.).
• Cannot support OPT STEM Extensions any longer where: (a) are contracting company (lack of bona fide, “employer-employee relationship”; also problematic:  difficulty monitoring adherence to training plans, and inability to onsite supervise); and (b) person would volunteer (have just wage requirement now; have to be paid).  It, in addition, has been suggested start-ups may not represent “qualifying employers” under the new rule.  We imagine the issues or concern, here, would be:  potential lack of sufficient resources to train; pay complications (regular or where needs to be?); and/or presumed assumption of some admin. duties.  We, however, know that many of our start-ups are on the larger side, and certainly would have sufficient resources to train, pay a competitive wage, etc.  So we would not take this as any black-and-white, outright prohibition.  Start-ups should continue to seek as you have been.  Just be very clear on capacity/resources to supervise, remuneration, and omit mention of any unspecialized, admin. work.

December 2014

On Friday, December 5th, Alan will be a guest speaker at the Mass Bar Association’s  12th Annual In-House Counsel Conference on “Compliance and Risk Management” .

http://www.massbar.org/cle/cle-programs?k=3650&kp=3646

November 2014

On Friday, November 7th, Shaun was a panelist in MOITI’s business event “Strengthening our Global Ties to Create Growth and Opportunity in Massachusetts”, hosted by Governor Deval Patrick.

https://www.eventbrite.com/e/strengthening-our-global-ties-to-create-growth-and-opportunity-in-massachusetts-with-governor-deval-tickets-10332654247