F-1 STEM OPT: The New Proposed Rule and the Litigation Bruce Gawtry DSO Macalester College and U. of Minnesota George C. Maxwell Borene Law Firm – Global Immigration Group 1

Outline Current STEM OPT Rule Current Status of the Litigation – August Order – DHS’s Request for Extension Proposed New Rule How Small and Large Colleges and Universities Might Adapt to the Burdens of the New Rule 2

Basics of Current Rule Issued in April 2008 STEM OPT Rule published as interim final rule along with CAP GAP 17 month extension of work authorization for qualifying students working at qualifying employers Student Graduates From a U.S. College or University with a Degree in Science Technology Engineering Math on DHS’s STEM List Student’s employer is an e-verify employer and position is related to degree In-status F-1 Student timely files for STEM OPT 3

Washington Alliance of Technology Workers Lawsuit WashTech challenged – DHS’ Authority to Provide Optional Practical Training (OPT), and – DHS’ Promulgation of the Rule under the APA Court held that under Chevron Deference that – DHS’s interpretation of F-1 Student to permit employment for training purposes without requiring ongoing school enrollment is longstanding and entitled to deference. – Congress has signaled that it finds DHS’ interpretation to be reasonable. Court also held however that DHS violated the APA in promulgating the STEM OPT and CAP GAP rule Court vacated the rule but stayed it until February 12, 2016 Court approved DHS motion to extend the stay until May 10, 2016 Court Made Clear No Additional Further Extensions 4

New Proposed Rule Proposed Rule Published on October 16, 2015 Received Over 50,000 Comments More Than Any Other Immigration Rule Ever Expect Final Rule To Be Issued Soon Continued Cap Gap Rule Expands STEM OPT from 17 months to 24 months Big Changes – Qualifications – Program application – Program Administration 5

Proposed Changes In Qualifications Makes clear that there is one STEM OPT per level (bachelors, Masters, PhD) up to two STEM Extensions lifetime Changes – Degree must be from an accredited institution – Defines STEM and process for DHS to add degrees to its list of approved degrees – Provides process for accessing a missed STEM OPT period in a prior degree 6

Proposed Changes Continued Changes – Eligible Training Opportunity – The training must be “directly related” to the student’s STEM degree – Employer Additional Requirements and Reporting Complete, Agree, and Sign a Mentoring and Training Plan (Student prepares and employer signs) Report Termination or departure (48 hours) Employers still must be participants in E-verify in good standing 7

Proposed Changes Continued Mentoring and Training Plan – Student Must Complete Written Plan and Get Employer Approval Before DSO issues I-20 for STEM OPT – Mentor and Training Plan submitted to DSO – Plan Must Explain How Employment Will Provide Work-Based Learning (Goals, Methods of Achievement, Relationship to Degree, Evaluation, and Supervision) Change Employers – Need New Plan – Duties, Hours and Compensation Must Be “commensurate” with others in “area of employment” – “similarly situated U.S. workers” (2 other workers at employer) No part-time below 20 hours a week Disclosure of compensation This could turn into a LCA-like requirement 8

Proposed Changes Continued Evaluation – Employer Must Develop Documentation to Track Progress – Evaluation at least every 6 months – DSOs required to make Plans and Evaluations available to SEVP Additional Employer Obligations – Attestation, Resources for Mentoring, Non-displacement of U.S. workers, Furthers Student Training Site Visits by DHS Expanded Period of Permissible Unemployment Aggregate from 120 to 150 9

DSO Obligations Under Proposed Rule Required to Certify that Degree is STEM Degree Must Review Mentoring and Training Program Report to ensure that it is properly completed and that the employer had met the requirements and provided the required assurances Additional Reporting Burdens on DSOs 10

Colleges and Universities Small Colleges and Universities Implementation of the New Requirements Large Colleges and Universities Implementation of the New Requirements 11

STEM OPT Students With Authorization Under the Old Rule What Happens If DHS Misses the Federal Court Deadline – Pending Applications – Do the EADs Continue to Be Valid – Unclear DHS Suggested that it would need the Court to Clarify Court declined to do so explicitly although it noted on page 9 that by granting the extension it hoped to prevent students from “losing their existing work authorization.” Process to Obtain an Additional 7 months of STEM OPT – Request additional 7 months By Meeting the New Requirements Automatic Extension of Work Authorization if STEM OPT Extension Timely Filed (Shorter of adjudication or 180 days). 12

Questions 13