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Optional Practical Training – What You Need To Know To Hire An F-1 Student With STEM OPT

Previously, the attorneys of Reddy & Neumann wrote an article concerning the process involved in hiring a student on F-1 status for a position that may qualify as optional practical training. Although, this is the typical path for a student with OPT options, another option for students who are involved in science, technology, engineering, or mathematics fields also exists. This option, known as STEM Optional Practical training, while similar to regular OPT, comes with its own set of requirements and regulations, which, if not followed, could make hiring an F-1 student more complicated than necessary. This article details the basics concerning what STEM OPT is, how it differs from traditional OPT,  and break down the process of what a student will need to do to apply for STEM OPT as well as what they employer will need to do in hiring a student on F-1 Status with STEM OPT.

WHAT IS STEM OPT?

Optional Practical Training (“OPT”) is a type of temporary employment at a position that is directly related to the F-1 student’s major. F-1 students are generally allowed to apply for up to 12 months of OPT employment authorization that may occur before they complete their studies and/or after they complete their studies. However, once this time period is up, if a student was involved in a major area of study derived from science, technology, engineering, or mathematics fields, they may be eligible for an additional 24 month period of temporary training. This extension is what is referred to as the STEM OPT extension.

In order for a student to be eligible for the STEM OPT extension, there are a number of qualifications that must be met:

  • Student, at the time of applying, must be participating in an initial period of regular post-completion OPT;
  • Have a bachelor’s, master’s, or doctoral degree in a STEM field from a Student and Exchange Visitor Program (“SEVP”) certified and accredited school;
  • Must pursue their STEM extension through an employer that is enrolled in the USCIS E-Verify employment eligibility verification program;
  • Student must select a STEM OPT employer that will provide formal training and learning objectives as evidence by the signing and submission of a Form I-983, Training Plan For STEM OPT Students, to the student’s DSO;
  • Must be a paid, non-self-employed position and
  • Work a minimum of 20 hours per week per employer

It should be noted that, for the condition that calls for an F-1 Student to have a degree in a STEM field from a Student and Exchange Visitor Program certified and accredited school, may also be satisfied by the use of a previous STEM Degree. In order for this to count, the degree must also have come from a currently accredited and SEVP-certified school and the student cannot have already received a STEM OPT extension based upon that degree.

APPLYING FOR STEM OPT

For a student to apply for STEM OPT, a student must first make a request with the student’s designated school official (“DSO”) to recommend STEM OPT. The earliest that this recommendation may occur is 90 days before the end of the F-1 student’s post completion OPT. In addition to obtaining a recommendation from the student’s DSO, the student must first properly file a Form I-765, Application for Employment which will grant them their Employment Authorization Document (EAD).  The EAD establishes the student’s identity and employment authorization for the purposes of filling out a Form I-9 for the student. This application should contain the correct application fee, the employer’s name as it was listed in E-Verify, and the employer’s E-Verify Identification Number. The employer’s E-Verify Client Company Identification Number may also suffice.

 Following this, if the recommendation is granted, the DSO will make the recommendation by endorsing the student’s Form I-120, Certification of Eligibility for Nonimmigrant Student Status, and by entering the recommendation into the student’s Student and Exchange Visitor Information System (“SEVIS”) record.

Generally, a student must apply for STEM OPT within 60 days from their recommendation on their I-20 or by the last day of their post-completion OPT, whichever comes first. If their application is properly filed, a student may be allowed to work up to 180 days past the end of their post completion OPT while a decision is pending with USCIS. It is very important that USCIS receives the application before the expiration of the student’s current OPT or else they may not be able to continue working past the aforementioned date.

HIRING A F-1 STUDENT WITH OPT

If you have an F-1 student that you wish to hire for a position, much like any other potential employee, you will need to file a Form I-9 on behalf of the student. The process for filing a Form I-9 for a OPT STEM student is virtually identical to the process for filing for a pre or post completion OPT student. As an employer, you have three days from the time that the employee begins their employment with your organization to file the I-9. There are three sections in total of the I-9 that will need to be completed — Section One is filled out by the F-1 student and Sections Two and Three are filled out by you as the employer.

Section One of the I-9 form deals primarily with identifying information of the F-1 student such as their name, address, email, birthday, etc. The information asked for does not vary between an American citizen and an F-1 visa student in the first portion of this section. However, where it does vary, is in the designation selection portion. When the F-1 Student completes Section 1, the student must enter the date that their EAD card expires in the Authorized to Work Until field in Section 1, next to what is marked as designation number 4 — An Alien Authorized to Work. Furthermore, in completing this portion, the F-1 student needs to present one of three document numbers:

  1. Alien Registration Number/ USCIS Number or
  2. Form I-94 Admission Number or
  3. Foreign Passport Number

Any one of the three document numbers will work for the satisfaction of this section.

Section Two of the I-9 form focuses on the employee’s authorization to work in the country. In order to show one’s authorization to work in the country, USCIS has compiled a list of acceptable documents that they will accept that can be found on the USCIS website. Furthermore, the list of acceptable documents is broken down into three lists— A, B, and C — which further separates the documents into documents that establishes both identity and employment authorization, documents that only establish identity, and documents that only establish employment authorization.  If a Document from List A is presented, no other documents are necessary. However, if a no document from list A is presented, an employer must provide at least one document from both Lists B and C to meet verification requirements.

For F-1 STEM OPT Student purposes in completing Section 2 for this student, a STEM OPT student’s EAD card falls under List A’s acceptable documents.  Thus, you should enter the student’s EAD Card Number as well as the date that the card expires under the column labeled as “List A”.

Students who file a timely I-765 for their STEM extension are granted an additional 180 days of work authorization upon the expiration of their post-completion OPT. If you are onboarding an F-1 student who applied for their STEM extension but the student does not yet have their EAD card in hand, you can still complete Section 2 for this student using the expired EAD presented with Form I-20 endorsed by the student’s DSO recommending a STEM extension. In this case, under List A in Section 2 you should enter EAD in the Document title field, enter the EAD number in the Document Number field, enter the date 180 days from the Card Expires date on the EAD in the Expiration Date field, and enter “EAD EXT” in the Additional Information field. For current employees with a STEM OPT extension, you should review the employee’s Form I-20 endorsed by the DSO recommending a STEM extension and enter “EAD EXT” and the date 180 days from the Card Expires date on the EAD in the Additional Information field.

Section Three of the I-9 form focuses on the re-verification process for an employee who is either: being rehired; their employment authorization is ending; or if there has been any material change to their name or identity since the original filing of the I-9. This reverification is never required for US citizens nor is it required when US passports, US passport Cards, Green Cards, or List B Documents expire. For anyone on an expiring immigration status, employment status, or employment authorization document, they should file the necessary application well in advance of their expiration date; however, an employee’s employment authorization must be re-verified no later than the expiration date. You may not continue to employ a party who does not have proof of current employment authorization. When the student’s EAD expires, you must re-verify the student’s employment authorization in Section 3. This is done in a similar way to process involved in Section 2 by providing a current EAD card number and expiration date.

It should be noted that, if an F-1 student were to become unemployed, and they are in their period of Post Completion OPT, they are allowed 90 days of unemployment. Furthermore, they will also receive an additional 60 days during the period of OPT STEM extension. The accumulative unemployment dates cannot exceed 150 days. Any students who go past the maximum number of days of unemployment will be terminated from SEVIS.

While this is a general overview of the process that is involved in hiring an F-1 student with STEM OPT, there are many potential issues that you may run into as you attempt to onboard your employee. If you have any questions regarding this process or are in need of guidance in how to best comply with USCIS regulations, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.

By: Kristina M. Hernandez & Avery Krushall