[Federal Register Volume 81, Number 48 (Friday, March 11, 2016)]
[Rules and Regulations]
[Pages 13039-13122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04828]



[[Page 13039]]

Vol. 81

Friday,

No. 48

March 11, 2016

Part II





Department of Homeland Security





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8 CFR Parts 214 and 274a





 Improving and Expanding Training Opportunities for F-1 Nonimmigrant 
Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 
Students; Final Rule

Federal Register / Vol. 81 , No. 48 / Friday, March 11, 2016 / Rules 
and Regulations

[[Page 13040]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[DHS Docket No. ICEB-2015-0002]
RIN 1653-AA72


Improving and Expanding Training Opportunities for F-1 
Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All 
Eligible F-1 Students

AGENCY: Department of Homeland Security.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is amending its F-1 
nonimmigrant student visa regulations on optional practical training 
(OPT) for certain students with degrees in science, technology, 
engineering, or mathematics (STEM) from U.S. institutions of higher 
education. Specifically, the final rule allows such F-1 STEM students 
who have elected to pursue 12 months of OPT in the United States to 
extend the OPT period by 24 months (STEM OPT extension). This 24-month 
extension effectively replaces the 17-month STEM OPT extension 
previously available to certain STEM students. The rule also improves 
and increases oversight over STEM OPT extensions by, among other 
things, requiring the implementation of formal training plans by 
employers, adding wage and other protections for STEM OPT students and 
U.S. workers, and allowing extensions only to students with degrees 
from accredited schools. As with the prior 17-month STEM OPT extension, 
the rule authorizes STEM OPT extensions only for students employed by 
employers who participate in E-Verify. The rule also includes the 
``Cap-Gap'' relief first introduced in a 2008 DHS regulation for any F-
1 student with a timely filed H-1B petition and request for change of 
status.

DATES: This rule is effective May 10, 2016, except the addition of 8 
CFR 214.16, which is effective from May 10, 2016, through May 10, 2019.

FOR FURTHER INFORMATION CONTACT: Katherine Westerlund, Policy Chief 
(Acting), Student and Exchange Visitor Program, U.S. Immigration and 
Customs Enforcement, 500 12th Street SW., Washington, DC 20536; 
telephone (703) 603-3400; email SEVP@ice.dhs.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Abbreviations
II. Executive Summary
    A. Summary of Purpose of the Regulatory Action
    B. Summary of the Major Provisions of the Final Rule
    C. Costs and Benefits
III. Background
    A. Statutory and Regulatory Authority and History
    B. The 2015 NPRM
    C. Basis and Purpose of Regulatory Action
IV. Discussion of Comments and Final Rule
    A. Including a STEM OPT Extension Within the OPT Program
    B. Enforcement, Monitoring, and Oversight
    C. Qualifying F-1 Nonimmigrants
    D. Qualifying Employers
    E. STEM OPT Extension Validity Period
    F. Training Plan for F-1 Nonimmigrants on a STEM OPT Extension
    G. Application Procedures for STEM OPT Extension
    H. Travel and Employment Authorization Documentation of Certain 
F-1 Nonimmigrants Changing Status in the United States or on a STEM 
OPT Extension
    I. Transition Procedures
    J. Comments on the Initial Regulatory Impact Analysis
    K. Other Comments
V. Statutory and Regulatory Requirements
    A. Executive Orders 12866 and 13563: Regulatory Planning and 
Review
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act of 1996
    D. Unfunded Mandates Reform Act
    E. Congressional Review Act
    F. Collection of Information
    G. Federalism
    H. Civil Justice Reform
    I. Energy Effects
    J. Environment
    K. Indian Tribal Governments
    L. Taking of Private Property
    M. Protection of Children
    N. Technical Standards
List of Subjects
The Amendments

I. Abbreviations

CBP U.S. Customs and Border Protection
CFR Code of Federal Regulations
CIP Classification of Instructional Program
DHS Department of Homeland Security
DSO Designated School Official
EAD Employment Authorization Document
FOIA Freedom of Information Act
FR Federal Register
ICE U.S. Immigration and Customs Enforcement
ID Identification
IFR Interim Final Rule
INA Immigration and Nationality Act
NCES National Center for Education Statistics
NPRM Notice of Proposed Rulemaking
OPT Optional Practical Training
RIA Regulatory Impact Analysis
SEVP Student and Exchange Visitor Program
SEVIS Student and Exchange Visitor Information System
STEM Science, Technology, Engineering, or Mathematics
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services

II. Executive Summary

A. Purpose of the Regulatory Action

    This final rule affects certain F-1 nonimmigrant students who seek 
to obtain an extension of optional practical training (OPT) based on 
study at a U.S. institution of higher education in a science, 
technology, engineering or mathematics (STEM) field, as well as certain 
F-1 nonimmigrant students who seek so-called Cap-Gap relief. The F-1 
nonimmigrant classification is available to individuals seeking 
temporary admission to the United States as students at an established 
college, university, seminary, conservatory, academic high school, 
elementary school, or other academic institution or in an accredited 
language training program.\1\ To obtain F-1 nonimmigrant 
classification, the student must be enrolled in a full course of study 
at a qualifying institution and have sufficient funds for self-support 
during the entire proposed course of study. Such course of study must 
occur at a school authorized by the U.S. government to accept 
international students.
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    \1\ For purposes of 8 CFR 214.2(f), a ``college or university'' 
is an institution of higher learning that awards recognized 
bachelor's, master's, doctoral or professional degrees. See 8 CFR 
214.3(a)(2)(A). A career or technical institution may therefore be 
categorized as a ``college or university'' if it awards such 
degrees.
---------------------------------------------------------------------------

    OPT is a form of temporary employment available to F-1 students 
(except those in English language training programs) that directly 
relates to a student's major area of study in the United States. A 
student can apply to engage in OPT during his or her academic program 
(``pre-completion OPT'') or after completing the academic program 
(``post-completion OPT''). A student can apply for 12 months of OPT at 
each education level (e.g., one 12-month OPT period at the bachelor's 
level and another 12-month period at the master's level). While school 
is in session, the student may work up to 20 hours per week pursuant to 
OPT.
    This final rule provides for an extension of the OPT period for 
certain F-1 students who have earned certain STEM degrees and 
participate in practical training opportunities with employers that 
meet certain requirements. The Department of Homeland Security (DHS) 
first introduced an extension of OPT for STEM graduates in a 2008 
interim final rule (2008 IFR). See 73 FR 18944 (Apr. 8, 2008). Under 
the 2008 IFR, an F-1 student with a STEM degree from a U.S. institution 
of higher education could apply for an additional 17 months of

[[Page 13041]]

OPT (17-Month STEM OPT extension), provided that the employer from 
which the student sought employment was enrolled in and remained in 
good standing in the E-Verify electronic employment eligibility 
verification program (E-Verify), as determined by U.S. Citizenship and 
Immigration Services (USCIS). As discussed in further detail below, on 
August 12, 2015, the U.S. District Court for the District of Columbia 
ordered the vacatur of the 2008 IFR on procedural grounds and remanded 
the issue to DHS. The court stayed the vacatur until February 12, 2016 
to give DHS the opportunity to issue a new rule related to STEM OPT 
extensions through notice-and-comment rulemaking.
    On October 19, 2015, DHS published a notice of proposed rulemaking 
(NPRM) in the Federal Register to reinstate the STEM OPT extension, 
with changes intended to enhance the educational benefit afforded by 
the extension and to increase program oversight, including safeguards 
to protect U.S. workers. See 80 FR 63376. On January 23, 2016, the 
Court further stayed its vacatur until May 10, 2016, to provide DHS 
additional time to complete the rulemaking following review of public 
comments received during the comment period and to allow the Department 
to publish the rule with a 60-day delayed effective date to provide 
sufficient time for efficient transition to the new rule's 
requirements.

B. Summary of the Major Provisions of the Final Rule

1. Summary of Final Rule
    This rule finalizes the NPRM, with certain changes made following 
review and consideration of the public comments received by DHS. Under 
this rule, a qualifying F-1 student with a STEM degree who has been 
granted 12 months of practical training pursuant to the general OPT 
program may apply to DHS for a 24-month extension of his or her period 
of practical training (STEM OPT extension).
    The core purpose of the STEM OPT extension is to allow 
participating students to supplement their academic knowledge with 
valuable practical STEM experience. Accordingly, as is the case with 
practical training generally, a student's practical training pursuant 
to the STEM OPT extension must be directly related to the student's 
major area of study. The student's STEM degree must be awarded by an 
accredited U.S. college or university and be in a field recognized as a 
STEM field by DHS. The student may base the extension on the student's 
most recent academic degree, or may (subject to a number of 
requirements described in more detail below) base the extension on a 
STEM degree that the student earned earlier in his or her academic 
career in the United States. Under this rule, a student may be eligible 
for up to two, separate STEM OPT extensions over the course of his or 
her academic career, upon completing two qualifying STEM degrees at 
different educational levels.
    This rule includes a number of measures intended to better ensure 
the educational benefit, integrity, and security of the STEM OPT 
extension. For instance, the rule requires each STEM OPT student to 
prepare and execute with their prospective employer a formal training 
plan that identifies learning objectives and a plan for achieving those 
objectives. The STEM OPT student and his or her employer must work 
together to finalize that plan. The rule also prohibits students from 
basing a STEM OPT extension on a degree from an unaccredited 
educational institution. Moreover, to ensure compliance with program 
requirements, the rule provides for DHS site visits to employer 
locations in which STEM OPT students are employed. Although DHS will 
generally give notice of such site visits, DHS may conduct an 
unannounced site visit if it is triggered by a complaint or other 
evidence of noncompliance with the regulations.
    The rule also includes a number of requirements intended to help 
DHS track STEM OPT students and further enhance the integrity of the 
STEM OPT extension. Most prominent among these are reporting 
requirements, which the rule imposes primarily upon students and 
designated school officials (DSOs). The rule includes four main 
reporting requirements, as follows. First, the rule imposes a six-month 
validation requirement, under which a STEM OPT student and his or her 
school must work together to confirm the validity of certain 
biographical, residential, and employment information concerning the 
student, including the student's legal name, the student's address, the 
employer's name and address, and current employment status. Second, the 
rule imposes an annual self-evaluation requirement, under which the 
student must report to the DSO on his or her progress with the 
practical training. The student's employer must sign the self-
evaluation prior to its submission to the DSO. Third, the rule requires 
that the student and employer report changes in employment status, 
including the student's termination or departure from the employer. 
Fourth, both the student and the employer are obligated to report to 
the DSO material changes to, or material deviations from, the student's 
formal training plan.
    Finally, this rule includes a number of specific obligations for 
STEM OPT employers. These obligations are intended to ensure the 
integrity of the program and provide safeguards for U.S. workers in 
STEM fields. Among other things, the employer must be enrolled in and 
remain in good standing with E-Verify; assist with the aforementioned 
reporting and training plan requirements; and attest that (1) it has 
sufficient resources and trained personnel available to provide 
appropriate training in connection with the specified opportunity; (2) 
the student on a STEM OPT extension will not replace a full- or part-
time, temporary or permanent U.S. worker; and (3) the opportunity helps 
the student attain his or her training objectives.
    We describe each of these provisions in more detail below.
2. Comparison to the 2008 IFR
    As noted above, this rule contains a number of changes in 
comparison to the 2008 IFR, while retaining other provisions of the 
2008 IFR. Changes made by this rule in comparison to the 2008 IFR 
include:
     Lengthened STEM OPT Extension Period. The rule increases 
the OPT extension period for STEM OPT students from the 2008 IFR's 17 
months to 24 months. The final rule also makes F-1 students who 
subsequently enroll in a new academic program and earn another 
qualifying STEM degree at a higher educational level eligible for one 
additional 24-month STEM OPT extension.
     STEM Definition and CIP Categories for STEM OPT Extension. 
The rule defines which fields of study (more specifically, which 
Department of Education Classification of Instructional Program (CIP) 
categories) may serve as the basis for a STEM OPT extension. The rule 
also sets forth a process for public notification in the Federal 
Register when DHS updates the list of eligible STEM fields on the 
Student and Exchange Visitor Program's (SEVP's) Web site.
     Training Plan for STEM OPT Students. To improve the 
educational benefit of the STEM OPT extension, the rule requires 
employers to implement formal training programs to augment students' 
academic learning through practical experience. This requirement is 
intended to equip students with a more comprehensive understanding of

[[Page 13042]]

their selected area of study and broader functionality within that 
field.
     Previously Obtained STEM Degrees. The rule permits an F-1 
student participating in a 12-month period of post-completion OPT based 
on a non-STEM degree to use a prior eligible STEM degree from a U.S. 
institution of higher education as a basis to apply for a STEM OPT 
extension, as long as both degrees were received from currently 
accredited educational institutions. The practical training opportunity 
must be directly related to the previously obtained STEM degree.
     Safeguards for U.S. Workers in Related Fields. To guard 
against adverse impacts on U.S. workers, the rule requires terms and 
conditions of a STEM practical training opportunity (including duties, 
hours, and compensation) to be commensurate with those applicable to 
similarly situated U.S. workers. As part of completing the Form I-983, 
Training Plan for STEM OPT Students, an employer must attest that: (1) 
It has sufficient resources and trained personnel available to provide 
appropriate training in connection with the specified opportunity; (2) 
the student will not replace a full- or part-time, temporary or 
permanent U.S. worker; and (3) the opportunity will help the student 
attain his or her training objectives.
     School Accreditation, Employer Site Visits, and Employer 
Reporting. To improve the integrity of the STEM OPT extension, the 
rule: (1) Generally limits eligibility for such extensions to students 
with degrees from schools accredited by an accrediting agency 
recognized by the Department of Education; (2) clarifies DHS discretion 
to conduct employer site visits at worksites to verify whether 
employers are meeting program requirements, including that they possess 
and maintain the ability and resources to provide structured and guided 
work-based learning experiences; and (3) institutes new employer 
reporting requirements.
     Compliance Requirements and Unemployment Limitation. In 
addition to reinstating the 2008 IFR's reporting and compliance 
requirements, the rule revises the number of days an F-1 student may 
remain unemployed during the practical training period. The program in 
effect before this final rule allowed a student to be unemployed up to 
90 days during his or her initial period of post-completion OPT, and up 
to an additional 30 days (for a total of 120 days) for a student who 
received a 17-month STEM OPT extension. This rule retains the 90-day 
maximum period of unemployment during the initial period of post-
completion OPT but allows an additional 60 days (for a total of 150 
days) for a student who obtains a 24-month STEM OPT extension.
    The rule retains other provisions of the 2008 IFR, as follows:
     E-Verify and Reporting Requirements for STEM OPT 
Employers. The rule requires STEM OPT employers to be enrolled in and 
remain in good standing with E-Verify, as determined by USCIS, and to 
report changes in the STEM OPT student's employment to the DSO within 
five business days.
     Reporting Requirements for STEM OPT Students. The rule 
requires STEM OPT students to report to their DSOs any name or address 
changes, as well as any changes to their employers' names or addresses. 
Students also must verify the accuracy of this reporting information 
periodically.
     Cap-Gap Extension for F-1 Students with Timely Filed H-1B 
Petitions and Requests for Change of Status. With a minor revision to 
improve readability, the rule includes the 2008 IFR's Cap-Gap extension 
provision, under which DHS temporarily extends an F-1 student's 
duration of status and any current employment authorization if the 
student is the beneficiary of a timely filed H-1B petition and change-
of-status request pending with or approved by USCIS. The Cap-Gap 
extension extends the OPT period until the beginning of the new fiscal 
year (i.e., October 1 of the fiscal year for which the H-1B status is 
being requested).
3. Summary of Changes From the Notice of Proposed Rulemaking
    Following careful consideration of public comments received, DHS 
also has made several modifications to the regulatory text proposed in 
the NPRM. Those changes include the following:
     Time of Accreditation. For a STEM OPT extension based on a 
previously obtained STEM degree, the student must have obtained that 
degree from an educational institution that is accredited at the time 
of the student's application for the extension.
     SEVP Certification Required for Prior Degrees. For a STEM 
OPT extension based on a previously obtained STEM degree, the degree 
also must have been issued by an educational institution that is SEVP-
certified at the time of application for the extension. Overseas 
campuses of U.S. educational institutions are not eligible for SEVP 
certification.
     Site Visit Notifications. DHS will provide notice to the 
employer 48 hours before any site visit unless a complaint or other 
evidence of noncompliance with the STEM OPT extension regulations 
triggers the visit, in which case DHS may conduct the visit without 
notice.
     Focus on Training. DHS has modified the proposed rule's 
Mentoring and Training Plan to increase the focus on training. The 
information collection instrument for this plan is now titled Form I-
983, Training Plan for STEM OPT Students.
     Existing Employer Training Programs. This rule streamlines 
and clarifies the regulatory text and Training Plan for STEM OPT 
Students to clarify that employers may use existing training programs 
to satisfy certain regulatory requirements for evaluating the progress 
of STEM OPT students.
     Employer Attestation. The rule revises the employer 
attestation to require that the employer attest that the student will 
not replace a full- or part-time, temporary or permanent U.S. worker.
     Evaluation of Student Progress. The rule revises the 
evaluation requirement to require that the student and an appropriate 
individual in the employer's organization sign the evaluation on an 
annual basis, with a mid-point evaluation during the first 12-month 
interval and a final evaluation completed prior to the conclusion of 
the STEM OPT extension.
    DHS also has clarified its interpretation of the rule in a number 
of ways, as explained more fully below.

C. Costs and Benefits

    The anticipated costs of compliance with the rule, as well as the 
benefits, are discussed at length in the section below, entitled 
``Statutory and Regulatory Requirements--Executive Orders 12866 and 
13563.'' A combined Regulatory Impact Analysis and a Final Regulatory 
Flexibility Analysis are available in the docket for this rulemaking. A 
summary of the analysis follows.
    DHS estimates that the costs imposed by the implementation of this 
rule will be approximately $737.6 million over the 10-year analysis 
time period, discounted at 3 percent, or $588.5 million, discounted at 
7 percent. This amounts to $86.5 million per year when annualized at a 
3 percent discount rate, or $83.8 million per year when annualized at a 
7 percent discount rate. The Summary Table at the end of this section 
presents the cost estimates in more detail.
    With respect to benefits, making the STEM OPT extension available 
to additional students and lengthening the 17-month extension to 24 
months will enhance certain students' ability to achieve the objectives 
of their courses of

[[Page 13043]]

study by allowing them to gain valuable knowledge and skills through 
on-the-job training that may be unavailable in their home countries. 
The changes will also benefit the U.S. educational system, U.S. 
employers, and the broader U.S. economy. The rule will benefit the U.S. 
educational system by helping to ensure that the nation's colleges and 
universities remain globally competitive in attracting international 
students in STEM fields. U.S. employers will benefit from the increased 
ability to rely on skilled U.S.-educated STEM OPT students, as well as 
their knowledge of markets in their home countries. The nation also 
will benefit from the increased retention of such students in the 
United States, including through increased research, innovation, and 
other forms of productivity that enhance the nation's economic, 
scientific, and technological competitiveness.
    Furthermore, strengthening the STEM OPT extension by implementing 
requirements for training, tracking objectives, reporting on program 
compliance, and accreditation of participating schools will further 
prevent abuse of the limited on-the-job training opportunities provided 
by OPT in STEM fields. These and other elements of the rule also will 
improve program oversight, strengthen the requirements for program 
participation, and better ensure that U.S. workers are protected.
    The Summary Table below presents a summary of the benefits and 
costs of the rule. The costs are discounted at 7 percent. Students will 
incur costs for completing application forms and paying application 
fees; reporting to DSOs; preparing (with their employers) the Training 
Plan for STEM OPT Students required by this rule; and periodically 
submitting updates to employers and DSOs. DSOs will incur costs for 
reviewing information and forms submitted by students, inputting 
required information into the Student and Exchange Visitor Information 
System (SEVIS), and complying with other oversight requirements related 
to prospective and participating STEM OPT students. Employers of STEM 
OPT students will incur burdens for preparing the Training Plan with 
students, confirming students' evaluations, enrolling in (if not 
previously enrolled) and using E-Verify to verify employment 
eligibility for all new hires, and complying with additional 
requirements related to E-Verify.

                            Summary Table--Estimated Costs and Benefits of Final Rule
                                          [in millions of 2014 dollars]
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                                              STEM OPT                  E-Verify                  Total
----------------------------------------------------------------------------------------------------------------
10-Year Cost Annualized at 7 Percent            $79.8                     $4.0                    $83.8
 Discount Rate.
10-Year Cost Annualized at 3 Percent            $82.3                     $4.2                    $86.5
 Discount Rate.
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Qualitative Costs...................   Cost to students and schools resulting from accreditation
                                       requirement;
                                       Cost to employers from the requirement to provide STEM OPT
                                       students commensurate compensation to similarly situated U.S. workers;
                                       and
                                       Decreased practical training opportunities for students no longer
                                       eligible for the program due to improvements to the STEM OPT extension.
----------------------------------------------------------------------------------------------------------------
Monetized Benefits..................             N/A                      N/A                      N/A
----------------------------------------------------------------------------------------------------------------
Non-monetized Benefits..............   Increased ability of students to gain valuable knowledge and
                                       skills through on-the-job training in their field;
                                       Increased global attractiveness of U.S. colleges and
                                       universities; and
                                       Increased program oversight, strengthened requirements for
                                       program participation, and new protections for U.S. workers.
----------------------------------------------------------------------------------------------------------------
Net Benefits........................             N/A                      N/A                      N/A
----------------------------------------------------------------------------------------------------------------

    Finally, in response to public comments, DHS revised the regulatory 
impact analysis (RIA) published with the NPRM to reflect the changes 
made in the final rule and include new data that has become available 
since the publication of the NPRM, such as updated compensation rates. 
DHS's major changes to the RIA from the NPRM are summarized in the 
table below.

                                 Table 1--Changes From Initial RIA to Final RIA
----------------------------------------------------------------------------------------------------------------
                                             NPRM and final rule comparison
             Variables              ------------------------------------------------    Description of changes
                                          NPRM         Final rule      Difference
----------------------------------------------------------------------------------------------------------------
                                         Population of Affected Parties
----------------------------------------------------------------------------------------------------------------
Number of Students due to Increased             10%              5%             -5%   The final rule's
 CIP List Eligibility as a percent                                                    changes to the CIP list
 of New STEM OPT Extension Students.                                                  are not expected to result
                                                                                      in the same expansion of
                                                                                      eligibility as DHS
                                                                                      anticipated in the
                                                                                      proposed rule.
Number of Transitional Students....          18,210          17,610            -600   Revised the
                                                                                      estimate of transitional
                                                                                      students based on the
                                                                                      effective date of final
                                                                                      rule.
----------------------------------------------------------------------------------------------------------------

[[Page 13044]]

 
                                                      Wages
----------------------------------------------------------------------------------------------------------------
STEM Students' Weighted Average              $23.81          $26.06           $2.25   New FLC Data
 Wage Rate (unloaded).                                                                Center Online Wage Library
                                                                                      data for 2014-2015 was
                                                                                      published.
                                                                                      Revised STEM
                                                                                      occupations list to more
                                                                                      closely reflect the STEM
                                                                                      OPT extension degrees.
----------------------------------------------------------------------------------------------------------------
                Training Plan Form for STEM OPT Students--Initially Completing Training Plan Form
----------------------------------------------------------------------------------------------------------------
Student Burden.....................          $58.05          $82.44          $24.39   Time burden
                                                                                      increased from 1.67 hours
                                                                                      to 2.17 hours in response
                                                                                      to public comments.
Employer Burden....................         $123.47         $280.81         $157.34   Training Plan form
                                                                                      revisions require up to
                                                                                      two employer officials
                                                                                      contributing to the
                                                                                      initial completion of the
                                                                                      Training Plan form.
                                                                                      Time burden
                                                                                      increased from 2 hours to
                                                                                      4 hours in response to
                                                                                      public comments.
DSO Burden.........................          $13.09          $52.31          $39.22   Time burden
                                                                                      revised from 0.33 hours to
                                                                                      1.33 hours to reflect
                                                                                      public comments.
----------------------------------------------------------------------------------------------------------------
                         Training Plan Form for STEM OPT Students--12-Month Evaluations
----------------------------------------------------------------------------------------------------------------
Student Burden.....................     \2\ $139.04         $114.15         -$24.89   Frequency of
                                                                                      evaluations changed from
                                                                                      six to 12 months.
                                                                                      Updated STEM
                                                                                      student wage rate.
                                                                                      Time burden
                                                                                      increased from 1.17 hours
                                                                                      to 1.5 hours in response
                                                                                      to public comments.
Employer Burden....................          $78.96         $118.44          $39.48   Frequency of
                                                                                      evaluations changed from
                                                                                      six to 12 months.
                                                                                      Time burden
                                                                                      increased from 0.25 to
                                                                                      0.75 hours in response to
                                                                                      public comments.
DSO Burden.........................      \3\ $26.74          $78.66          $51.92   Frequency of
                                                                                      evaluations changed from
                                                                                      six to 12 months.
                                                                                      Time burden
                                                                                      increased from 0.33 hours
                                                                                      to 1 hour in response to
                                                                                      public comments.
----------------------------------------------------------------------------------------------------------------
                                         Additional Implementation Costs
----------------------------------------------------------------------------------------------------------------
Evaluations........................      \4\ $10.57           $5.29          -$5.28   Frequency of
                                                                                      evaluations changed from
                                                                                      six to 12 months.
----------------------------------------------------------------------------------------------------------------
                                             Reporting Requirements
----------------------------------------------------------------------------------------------------------------
Student Opportunity Cost for                 $12.94              $0          $12.94   The student
 Updating Information Reports.                                                        Reporting Requirements in
                                                                                      the Final Rule do not
                                                                                      represent a change from
                                                                                      the baseline.
----------------------------------------------------------------------------------------------------------------
                             E-Verify Requirements for STEM OPT Extension Employers
----------------------------------------------------------------------------------------------------------------
Total Enrolled Employers Who Would           70,025           8,753         -61,272   Updated based on
 Discontinue E-Verify without Final                                                   further research.
 Rule over 10 years.
                                    ----------------------------------------------------------------------------
    Total 10-year Cost                      $759.3M         $886.1M         $126.8M
     (Undiscounted).
----------------------------------------------------------------------------------------------------------------

III. Background

A. Statutory and Regulatory Authority and History
---------------------------------------------------------------------------

    \2\ In the NPRM, DHS presented a combined total student burden 
for six-month evaluations and validation check-ins (1.17 hours). 
Note that the NPRM cost estimate only included 1 hour for the 
student to complete the evaluation. The NPRM cost estimate did not 
include a separate estimate of 0.17 hours for associated with the 
six-month validation report requirement from the IFR. Hence, this 
value, $139.04 (= 2 evaluations x 1 hour x $34.76/hour), differs 
from that presented in the NPRM, $162.68 (= 4 evaluations x 1.17 
hours x $34.76/hour).
    \3\ In the NPRM, DHS presented the combined total DSO burden for 
six-month evaluations and validation check-ins. Note that the NPRM 
estimate only included the 0.17 hours for the DSO to file each 
evaluation and did not include the 0.17 hours for the DSO to make a 
six-month validation report to SEVIS. Hence, this value, $26.74 (= 2 
evaluations x 0.17 hours x $39.33/hour), differs from that presented 
in the NPRM, $52.39 (= 4 evaluations and validation check-ins x 
0.333 hours x $39.33/hour).
    \4\ In the NPRM, DHS presented the combined total implementation 
cost for six-month evaluations and validation check-ins. Note that 
the NPRM estimate only included the costs associated with the six-
month evaluations. Hence, this value, $10.57 ((= $78.96 + 26.74) x 
10%), differs from that presented in the NPRM, $13.09 ((= $78.96 + 
$52.39) x 10%).
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    The Secretary of Homeland Security (Secretary) has broad authority 
to administer and enforce the nation's immigration laws. See generally 
6 U.S.C. 202; Immigration and Nationality

[[Page 13045]]

Act of 1952, as amended (INA), Sec. 103, 8 U.S.C. 1103. Section 
101(a)(15)(F)(i) of the INA establishes the F-1 nonimmigrant 
classification for individuals who wish to come to the United States 
temporarily to enroll in a full course of study at an academic or 
language training school certified by U.S. Immigration and Customs 
Enforcement's (ICE's) SEVP. 8 U.S.C. 1101(a)(15)(F)(i). The INA 
provides the Secretary with broad authority to determine the time and 
conditions under which nonimmigrants, including F-1 students, may be 
admitted to the United States. See INA Sec. 214(a)(1), 8 U.S.C. 
1184(a)(1). The Secretary also has broad authority to determine which 
individuals are authorized for employment in the United States. See, 
e.g., INA Sec. 274A(h)(3), 8 U.S.C. 1324a(h)(3).
    Federal agencies dealing with immigration have long interpreted 
Sec. 101(a)(15)(F)(i) of the INA and related authorities to encompass 
on-the-job training that supplements classroom training. See, e.g., 12 
FR 5355, 5357 (Aug. 7, 1947) (authorizing employment for practical 
training under certain conditions, pursuant to statutory authority 
substantially similar to current INA Sec. 101(a)(15)(F)(i)); 38 FR 
35425, 35426 (Dec. 28, 1973) (also authorizing, pursuant to the INA, 
employment for practical training under certain conditions).\5\
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    \5\ During a brief period following the Immigration Act of 1990, 
Congress expanded employment authorization for foreign students 
(referred to throughout this preamble as ``international students'') 
by allowing for a three-year pilot program in which students could 
be employed off-campus in positions unrelated to the student's field 
of study. Pub. L. 101-649, Sec. 221(a), 104 Stat. 4978, 5027 (Nov. 
29, 1990). In general, however, practical training has historically 
been limited to the student's field of study.
---------------------------------------------------------------------------

    ICE manages and oversees significant elements of the F-1 student 
process, including the certification of schools and institutions in the 
United States that enroll F-1 students. In overseeing these 
institutions, ICE uses SEVIS to track and monitor international 
students and communicate with the schools that enroll them while they 
are in the United States and participating in educational 
opportunities. Additional statutory and other authority requires and 
supports this tracking and monitoring.\6\
---------------------------------------------------------------------------

    \6\ DHS derives its authority to manage these programs from 
several sources, including, in addition to the authorities cited 
above, section 641 of Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-546, 
3009-704 (Sep. 30, 1996) (codified as amended at 8 U.S.C. 1372), 
which authorizes the creation of a program to collect current and 
ongoing information provided by schools and exchange visitor 
programs regarding F and other nonimmigrants during the course of 
their stays in the United States, using electronic reporting 
technology where practicable. Consistent with this statutory 
authority, DHS manages these programs pursuant to Homeland Security 
Presidential Directive--2 (HSPD--2), Combating Terrorism Through 
Immigration Policies (Oct. 29, 2001), as amended, http://www.gpo.gov/fdsys/pkg/CPRT-110HPRT39618/pdf/CPRT-110HPRT39618.pdf); 
and Section 502 of the Enhanced Border Security and Visa Entry 
Reform Act of 2002, Pub. L. 107-173, 116 Stat. 543, 563 (May 14, 
2002). HSPD-2 requires the Secretary of Homeland Security to conduct 
periodic, ongoing reviews of institutions certified to accept F 
nonimmigrants, and to include checks for compliance with 
recordkeeping and reporting requirements. See Weekly Comp. Pres. 
Docs., 37 WCPD 1570, http://www.gpo.gov/fdsys/granule/WCPD-2001-11-05/WCPD-2001-11-05-Pg1570/content-detail.html. Section 502 of the 
Enhanced Border Security and Visa Entry Reform Act of 2002 directs 
the Secretary to review the compliance with recordkeeping and 
reporting requirements under 8 U.S.C. 1101(a)(15)(F) and 1372 of all 
schools approved for attendance by F students within two years of 
enactment, and every two years thereafter. Moreover, the programs 
discussed in this rule, as is the case with all DHS programs, are 
carried out in keeping with DHS's primary mission, which includes 
the responsibility to ``ensure that the overall economic security of 
the United States is not diminished by the efforts, activities, and 
programs aimed at securing the homeland.'' 6 U.S.C. 111(b)(1)(F).
---------------------------------------------------------------------------

1. OPT Background
    A student in F-1 status may remain in the United States for the 
duration of his or her education if otherwise meeting the requirements 
for the maintenance of status. 8 CFR 214.2(f)(5)(i). Once an F-1 
student has completed his or her academic program and any subsequent 
period of OPT, the student must generally leave the United States 
unless he or she enrolls in another academic program, either at the 
same school or at another SEVP-certified school; changes to a different 
nonimmigrant status; or otherwise legally extends his or her period of 
authorized stay in the United States. As noted, DHS regulations have 
long defined an F-1 student's duration of status to include the 
student's practical training. See, e.g., 48 FR 14575, 14583 (Apr. 5, 
1983).\7\ Additionally, an F-1 student is allowed a 60-day ``grace 
period'' after the completion of the academic program or OPT to prepare 
for departure from the United States. 8 CFR 214.2(f)(5)(iv).
---------------------------------------------------------------------------

    \7\ See Washington Alliance of Tech. Workers v. U.S. Dep't of 
Homeland Security, No. 1:14-cv-00529, slip op. at 25-26 (D.D.C. Aug. 
12, 2015) (finding that DHS's interpretation permitting ``employment 
for training purposes without requiring school enrollment'' is 
```longstanding' and entitled to [judicial] deference'').
---------------------------------------------------------------------------

    Unless an F-1 student meets certain limited exceptions, he or she 
may not be employed in the United States during the term of his or her 
F-1 status. DHS permits an F-1 student who has been enrolled on a full-
time basis for at least one full academic year in a college, 
university, conservatory, or seminary certified by SEVP, and who has 
otherwise maintained his or her status, to apply for practical training 
to work for a U.S. employer in a job directly related to his or her 
major area of study. 8 CFR 214.2(f)(10).
    An F-1 student may seek employment through OPT either during his or 
her academic program (pre-completion OPT) or immediately after 
graduation (post-completion OPT). The student remains in F-1 
nonimmigrant status throughout the OPT period. Thus, an F-1 student in 
post-completion OPT does not have to leave the United States within 60 
days after graduation, but instead has authorization to remain for the 
entire post-completion OPT period. 8 CFR 214.2(f)(5)(i). This initial 
post-completion OPT period (i.e., a period of practical training 
immediately following completion of an academic program) can be up to 
12 months, except in certain circumstances involving students who 
engaged in either pre-completion OPT or curricular practical training 
(CPT).\8\
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    \8\ CPT provides a specially-designed program through which 
students can participate in an internship, alternative study, 
cooperative education, or similar programs. 52 FR 13223 (Apr. 22, 
1987). Defined to also include practicums, CPT allows sponsoring 
employers to train F-1 students as part of the students' established 
curriculum within their schools. 8 CFR 214.2(f)(10)(i). CPT must 
relate to and be integral to a student's program of study. Unlike 
OPT and other training or employment, however, CPT can be full-time 
even while a student is attending school that is in session. Schools 
have oversight of CPT through their DSOs, who are responsible for 
authorizing CPT that is directly related to the student's major area 
of study and reporting certain information, including the employer 
and location, the start and end dates, and whether the training is 
full-time or part time. 8 CFR 214.2(f)(10)(i)(B).
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2. Regulatory History
    On April 8, 2008, DHS published an interim final rule in the 
Federal Register (73 FR 18944) that, in part, extended the maximum 
period of OPT from 12 to 29 months (through a 17-month ``STEM OPT 
extension'') for an F-1 student who obtained a degree in a designated 
STEM field from a U.S. institution of higher education and who was 
engaged in practical training with an employer that enrolled in and 
remained in good standing with E-Verify, as determined by USCIS. As a 
result of that rule, F-1 students granted STEM OPT extensions were 
required to report to their DSOs any changes in their names or 
addresses, as well as any changes in their employer's information 
(including name or address), and periodically validate the accuracy of 
this information. The rule further required employers of such students 
to report to the relevant DSO within two

[[Page 13046]]

business days if a student was terminated from or otherwise left 
employment prior to the end of the authorized period of OPT. The rule 
allowed an F-1 student to apply for post-completion OPT within the 60-
day grace period at the conclusion of his or her academic program. The 
rule also limited the total period in which students on initial post-
completion OPT could be unemployed to 90 days. Students granted 17-
month STEM OPT extensions were provided an additional 30 days in which 
they could be unemployed, for an aggregate period of 120 days.
    The 2008 IFR also addressed the so-called Cap-Gap problem, which 
results when an F-1 student's F-1 status and OPT-based employment 
authorization expires before the start date of an approved H-1B 
petition and change-of-status request filed on his or her behalf (``H-
1B change-of-status petition''). Specifically, F-1 students on initial 
post-completion OPT frequently complete their period of authorized 
practical training in June or July of the year following graduation. 
Before the 2008 IFR, if such a student was a beneficiary of an H-1B 
petition that was pending with or approved by USCIS and requested a 
change of status to H-1B classification commencing in the following 
fiscal year (i.e., beginning on October 1), the student would be unable 
to obtain H-1B status before his or her OPT period expired. Such 
students were often required to leave the United States for a few 
months until they were able to obtain their H-1B status on October 1. 
The 2008 IFR addressed this problem through a Cap-Gap provision that 
briefly extended the F-1 student's duration of status and employment 
authorization to enable the student to remain in the United States 
until he or she could change to H-1B status.
    DHS received over 900 comments in response to the 2008 IFR. Public 
comments received on the 2008 IFR and other records may be reviewed at 
the docket for that rulemaking, No. ICEB-2008-0002, available at 
www.regulations.gov.
Washington Alliance Litigation Regarding the 2008 IFR
    On August 12, 2015, the U.S. District Court for the District of 
Columbia issued an order in the case of Washington Alliance of Tech. 
Workers v. U.S. Dep't of Homeland Security, -- F. Supp. 3d --, 2015 WL 
9810109, (D.D.C. Aug. 12, 2015) (slip op.). Although the court held 
that the 2008 IFR rested upon a reasonable interpretation of the 
INA,\9\ the court also held that DHS violated the notice and comment 
provisions of the Administrative Procedure Act (APA), 5 U.S.C. 553, by 
promulgating the 2008 IFR without advance notice and opportunity for 
public comment. In its order, the court invalidated the 2008 IFR as 
procedurally deficient, and remanded the issue to DHS.
---------------------------------------------------------------------------

    \9\ With respect to DHS's interpretation of the F-1 student visa 
provisions in the INA, the court found ample support for DHS's 
longstanding practice of ``permit[ting F-1 student] employment for 
training purposes without requiring ongoing school enrollment.'' 
Washington Alliance, No. 1:14-cv-00529, slip op. at 26-27. The court 
recognized the Secretary's broad authority under the INA ``to 
regulate the terms and conditions of a nonimmigrant's stay, 
including its duration.'' Id. at *29 (citing 8 U.S.C. 1103(a), 
1184(a)(1)). The court also recognized the Secretary's authority to 
consider the potential economic contributions and labor market 
impacts that may result from particular regulatory decisions. Id. 
(citing 6 U.S.C. 111(b)(1)(F)).
---------------------------------------------------------------------------

    Although the court vacated the 2008 IFR, the court stayed the 
vacatur until February 12, 2016, to provide time for DHS to correct the 
procedural deficiency through notice-and-comment rulemaking. Id. at 
*37.\10\ The court specifically explained that the stay was necessary 
to avoid ``substantial hardship for foreign students and a major labor 
disruption for the technology sector'' and that immediate vacatur of 
the STEM OPT extension would be ``seriously disruptive.'' Id. at *36. 
On January 23, 2016, the Court further stayed its vacatur by 90 days 
until May 10, 2016. Washington Alliance of Tech. Workers v. U.S. Dep't 
of Homeland Security, No. 1:14-cv-00529, (D.D.C. Jan. 23, 2016) (slip 
op.). The court further stayed the vacatur to provide DHS an additional 
30 days to complete the rulemaking and to allow the Department to 
publish the rule with a 60-day delayed effective date. Id.
---------------------------------------------------------------------------

    \10\ In an earlier preliminary ruling in the case regarding 
plaintiff's challenge to DHS's general OPT and STEM OPT extension 
programs, the court held that plaintiff did not have standing to 
challenge the general OPT program on behalf of its members because 
it had not identified a member of its association who suffered any 
harm from the general OPT program. See Washington Alliance of Tech. 
Workers v. U.S. Dep't of Homeland Security, 74 F. Supp. 3d 247, 252 
& n.3 (D.D.C. 2014). The court held in the alternative that the 
challenge to the general OPT program was barred by the applicable 
statute of limitations.
---------------------------------------------------------------------------

    Litigation in this matter is ongoing, as the plaintiff has appealed 
a portion of the court's August 12, 2015, decision. Thus the final 
disposition of the case remains to be determined. Nevertheless, it is 
clear that DHS must issue a final rule that will take effect before the 
court's stay expires on May 10, 2016, or a significant number of 
students will be unable to pursue valuable training opportunities that 
would otherwise be available to them.

B. The 2015 NPRM

    After the court's ruling, DHS acted quickly to address the imminent 
vacatur of the 2008 IFR and the significant uncertainty surrounding the 
status of thousands of students in the United States. As of September 
16, 2015, over 34,000 students were in the United States on a STEM OPT 
extension. In addition, hundreds of thousands of international 
students, most of whom are in F-1 status, already have chosen to enroll 
in U.S. educational institutions and are currently pursuing courses of 
study in fields that may provide eligibility for this program. Some of 
those students may have considered the opportunities offered by the 
STEM OPT extension when deciding whether to pursue their degree in the 
United States. DHS therefore acted swiftly to mitigate the uncertainty 
surrounding the 2008 IFR. Prompt action is particularly appropriate 
with respect to those students who have already committed to study in 
the United States, in part based on the possibility of furthering their 
education through an extended period of practical training in the 
world's leading STEM economy.\11\
---------------------------------------------------------------------------

    \11\ The National Science Foundation reports that the United 
States performs more science and engineering Research and 
Development (R&D) than any other nation, accounting for just under 
30% of the global total. See Science and Engineering Indicators 2014 
(NSF) at Chapter 4 (International Comparisons), at 4-17, available 
at http://www.nsf.gov/statistics/seind14/index.cfm/chapter-4. 
According to NSF, the United States expends $429 billion of the 
estimated $1.435 trillion in global science and engineering R&D (p. 
4-17), and business, government, higher education, and non-profits 
in the United States expend more than double that of any other 
country (Table 4-5).
---------------------------------------------------------------------------

    Accordingly, on October 19, 2015, DHS published an NPRM in the 
Federal Register, proposing to reinstate the STEM OPT extension along 
with changes intended to improve the integrity and academic benefit of 
the extension and to better protect U.S. workers.\12\ 80 FR 63376.\13\ 
During the public comment period, approximately 50,500 comments were 
submitted on the

[[Page 13047]]

NPRM and related forms.\14\ Comments were submitted by a range of 
entities and individuals, including U.S. and international students, 
U.S. workers, schools and universities, professional associations, 
labor organizations, advocacy groups, businesses, two members of 
Congress, and other interested persons. DHS thanks the public for its 
helpful input and engagement during the public comment period.\15\
---------------------------------------------------------------------------

    \12\ These proposed changes were consistent with the direction 
provided in the Secretary of Homeland Security's November 20, 2014 
memorandum entitled, ``Policies Supporting U.S. High Skilled 
Businesses and Workers.'' DHS recognized the nation's need to 
evaluate, strengthen, and improve practical training as part of an 
overall strategy to enhance our nation's economic, scientific, and 
technological competitiveness. Highly skilled persons educated in 
the United States contribute significantly to the U.S. economy, 
including through advances in entrepreneurial and research and 
development endeavors, which correlate highly with overall economic 
growth and job creation.
    \13\ DHS hereby incorporates all background material included in 
the NPRM in this final rule.
    \14\ Comments can be viewed in the online docket for this 
rulemaking at http://www.regulations.gov. Enter ``ICEB-2015-0002'' 
into the search bar to find the docket.
    \15\ One commenter requested a public meeting on the NPRM, 
``[g]iven the major impact that the rules will have on the 
educational and labor markets, and the lack of attention in the rule 
to the adverse impacts the program's insufficient regulations and 
worker protections can have on U.S. workers and students.'' DHS has 
determined that a public meeting would not be in the public 
interest, in light of the impending vacatur date and the extensive 
discussion of these issues in the NPRM, the public comments, and 
this final rule.
---------------------------------------------------------------------------

    This final rule builds upon the NPRM and the public comments 
received. DHS intends for this rule to further strengthen the integrity 
and educational benefit of STEM OPT extensions, as well as better 
protect U.S. workers.

C. Basis and Purpose of Regulatory Action

    In finalizing this rule, DHS recognizes the substantial economic, 
scientific, technological, and cultural benefits provided by the F-1 
nonimmigrant program generally, and STEM OPT extensions in particular.
1. Benefits of International Students in the United States
    International students have historically made significant 
contributions to the United States, both through the payment of tuition 
and other expenditures in the U.S. economy, as well as by significantly 
enhancing academic discourse and cultural exchange on campuses 
throughout the United States. In addition to these general benefits, 
STEM students further contribute through research, innovation, and the 
provision of knowledge and skills that help maintain and grow 
increasingly important sectors of the U.S. economy.
    International students, for example, regularly contribute a 
significant amount of money into the U.S. economy. According to 
statistics compiled by NAFSA: Association of International Educators 
(NAFSA), international students made a net contribution of $26.8 
billion to the U.S. economy in the 2013-2014 academic year.\16\ This 
contribution included tuition ($19.8 billion) and living expenses for 
self and family ($16.7 billion), after adjusting for U.S. financial 
support ($9.7 billion).\17\ Public colleges and universities 
particularly benefit from the payment of tuition by international 
students, especially in comparison to the tuition paid by in-state 
students.\18\
---------------------------------------------------------------------------

    \16\ NAFSA: Association of International Educators, ``The 
Economic Benefits of International Students: Economic Analysis for 
Academic Year 2013-2014,'' available at http://www.nafsa.org/_/File/_/eis2014/USA.pdf; see also NAFSA, International Student Economic 
Value Tool, available at http://www.nafsa.org/economicvalue.
    \17\ Id.
    \18\ Washington Post, ``College Group Targets Incentive Payments 
for International Student Recruiters'' (June 2, 2011), available at 
http://www.washingtonpost.com/local/education/college-group-targets-incentive-payments-for-international-student-recruiters/2011/05/31/AGvl5aHH_story.html.
---------------------------------------------------------------------------

    International students also increase the benefits of academic 
exchange, while reinforcing ties with other countries and fostering 
increased understanding of American society.\19\ International 
students, for example, ``enrich U.S. universities and communities with 
unique perspectives and experiences that expand the horizons of 
American students and [make] U.S. institutions more competitive in the 
global economy.'' \20\ At the same time, ``the international community 
in American colleges and universities has implications regarding global 
relationships, whether [those are] between nation-states, or global 
business and economic communities.'' \21\ International education and 
exchange at the post-secondary level in the United States builds 
relationships that ``promote cultural understanding and dialogue'' and 
bring a global dimension to higher education through the ``diversity in 
culture, politics, religions, ethnicity, and worldview'' brought by 
international students.\22\
---------------------------------------------------------------------------

    \19\ See The White House, National Security Strategy 29 (May 
2010), available at https://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.
    \20\ U.S. Department of State, ``Why Internationalize,'' 
available at https://educationusa.state.gov/us-higher-education-professionals/why-internationalize.
    \21\ Pamela Leong, ``Coming to America: Assessing the Patterns 
of Acculturation, Friendship Formation, and the Academic Experiences 
of International Students at a U.S. College,'' Journal of 
International Students Vol. 5 (4): 459-474 (2015) at p. 459.
    \22\ Hugo Garcia and Maria de Lourdes Villareal, ``The 
``Redirecting'' of International Students: American Higher Education 
Policy Hindrances and Implications,'' Journal of International 
Students Vol. 4 (2): 126-136 (2014) at p. 132.
---------------------------------------------------------------------------

    Accordingly, international students provide substantial benefits to 
their U.S. colleges and universities, including beneficial economic and 
cultural impacts. A study by Duke University in 2013 analyzing 5,676 
alumni surveys showed that ``substantial international interaction was 
positively correlated with U.S. students' perceived skill development 
in a wide range of areas across three cohorts.''\23\ Current research 
also suggests that international students contribute to the overall 
economy by building global connections between their hometowns and U.S. 
host cities.\24\ Evidence links skilled migration to transnational 
business creation, trade, and direct investment between the United 
States and a migrant's country of origin.\25\
---------------------------------------------------------------------------

    \23\ Jiali Luo and David Jamieson-Drake, ``Examining the 
Educational Benefits of Interacting with International Students'' at 
96 (June 2013), available at https://jistudents.files.wordpress.com/2013/05/2013-volume-3-number-3-journal-of-international-students-published-in-june-1-2013.pdf. The authors noted that U.S. 
educational institutions play an important role in ensuring U.S. 
students benefit as much as possible from this interaction.
    \24\ Brookings Institution, ``The Geography of Foreign Students 
in U.S. Higher Education: Origins and Destinations'' (August 29, 
2014), available at http://www.brookings.edu/research/interactives/2014/geography-of-foreign-students#/M10420.
    \25\ Sonia Plaza, ``Diaspora resources and policies,'' in 
International Handbook on the Economics of Migration, 505-529 
(Amelie F. Constant and Klaus F. Zimmermann, eds., 2013).
---------------------------------------------------------------------------

    International STEM students contribute to the United States in all 
the ways mentioned above. They also contribute more specifically to a 
number of advanced and innovative fields that are critical to national 
prosperity and security. By conducting scientific research, developing 
new technologies, advancing existing technologies, and creating new 
products and industries, for example, STEM workers diversify our 
nation's economy and drive economic growth while also producing 
increased employment opportunities and higher wages for all U.S. 
workers.\26\

[[Page 13048]]

Economic research supports the premise that scientists, technology 
professionals, engineers, and mathematicians (STEM workers) are 
fundamental components in scientific innovation and technological 
adoption, and critical drivers of productivity growth in the United 
States.\27\ For example, research has shown that international students 
who earn a degree and remain in the United States are more likely than 
native-born workers to engage in activities, such as patenting and the 
commercialization of patents, that increase U.S. labor 
productivity.\28\ Similarly, other research has found that a 1 
percentage point increase in immigrant college graduates' population 
share increases patents per capita by 9 to 18 percent.\29\ Research 
also has shown that foreign-born workers are particularly innovative, 
especially in research and development, and that they have positive 
spillover effects on native-born workers.\30\ One paper, for example, 
shows that foreign-born workers patent at twice the rate of U.S.-born 
workers, and that U.S.-born workers patent at greater rates in areas 
with more immigration.\31\ The quality of the nation's STEM workforce 
in particular has played a central role in ensuring national prosperity 
over the last century and helps bolster the nation's economic 
future.\32\ This, in turn, has helped to enhance national security, 
which is dependent on the nation's ability to maintain a growing and 
innovative economy.\33\ Innovation is crucial for economic growth, 
which is vital to continued funding for defense and security.\34\
---------------------------------------------------------------------------

    \26\ See Michael Greenstone and Adam Looney, ``A Dozen Economic 
Facts About Innovation'' 2-3, available at http://www.brookings.edu/
~/media/research/files/papers/2011/8/innovation-greenstone-looney/
08_innovation_greenstone_looney.pdf [hereinafter Greenstone and 
Looney]; Bureau of Labor Statistics 2014 data show that employment 
in occupations related to STEM has been projected to grow more than 
nine million, or 13 percent, during the period between 2012 and 
2022, 2 percent faster than the rate of growth projected for all 
occupations. Bureau of Labor Statistics, Occupational Outlook 
Quarterly, Spring 2014, ``STEM 101: Intro to Tomorrow's Jobs'' 6, 
available at http://www.stemedcoalition.org/wp-content/uploads/2010/05/BLS-STEM-Jobs-report-spring-2014.pdf. See also Australian 
Government, Strategic Review of the Student Visa Program 2011 
Report, ix, 1 (June 30, 2011), available at http://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/2011-knight-review.pdf#search=knight%20review (concluding 
that the economic benefit of international master's and doctoral 
research students includes third-party job creation).
    \27\ See, e.g., Economics and Statistics Administration, 
Department of Commerce, ``STEM: Good Jobs Now and For the Future'' 5 
(July 2011), available at http://www.esa.doc.gov/Reports/stem-good-jobs-now-and-future (``Science, technology, engineering and 
mathematics (STEM) workers drive our nation's innovation and 
competitiveness by generating new ideas, new companies and new 
industries.''); Giovanni Peri, Kevin Shih, Chad Sparber, ``Foreign 
STEM Workers and Native Wages and Employment in U.S. Cities'' 1 
(National Bureau of Economic Research, May 2014) Available at http://www.nber.org/papers/w20093 (observing that ``Scientists, Technology 
professionals, Engineers, and Mathematicians (STEM workers) are 
fundamental inputs in scientific innovation and technological 
adoption, the main drivers of productivity growth in the U.S.'').
    \28\ Jennifer Hunt, ``Which Immigrants are Most Innovative and 
Entrepreneurial? Distinctions by Entry Visa,'' Journal of Labor 
Economics Vol 29 (3): 417-457 (2011).
    \29\ Jennifer Hunt and Marjolaine Gauthier-Loiselle, ``How Much 
Does Immigration Boost Innovation?'' American Economic Journal: 
Macroeconomics 2: 31-56 (2010).
    \30\ Id.
    \31\ Id.
    \32\ Greenstone and Looney, supra note 26, at 2-3.
    \33\ See Congressional Research Service, Economics and National 
Security: Issues and Implications for U.S. Policy 28, available at 
https://www.fas.org/sgp/crs/natsec/R41589.pdf [hereinafter Economics 
and National Security]; see also The White House, National Security 
Strategy 16 (Feb. 2015), available at https://www.whitehouse.gov/sites/default/files/docs/2015_national_security_strategy.pdf 
(``Scientific discovery and technological innovation empower 
American leadership with a competitive edge that secures our 
military advantage, propels our economy, and improves the human 
condition.'') [hereinafter 2015 National Security Strategy]; The 
White House, National Security Strategy 29 (May 2010), available at 
https://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (``America's long-term leadership 
depends on educating and producing future scientists and 
innovators.'').
    \34\ The 2015 National Security Strategy concludes that ``the 
American economy is an engine for global growth and a source of 
stability for the international system. In addition to being a key 
measure of power and influence in its own right, it underwrites our 
military strength and diplomatic influence. A strong economy, 
combined with a prominent U.S. presence in the global financial 
system, creates opportunities to advance our security.'' 2015 
National Security Strategy, supra note 33, at 15.
---------------------------------------------------------------------------

2. Increased Competition for International Students
    DHS recognizes that the United States has long been a global leader 
in international education. The number of international students 
affiliated with U.S. colleges and universities grew by 72 percent 
between 1999 and 2013 to a total of 886,052.\35\ However, although the 
overall number of international students increased over that period, 
the nation's share of such students decreased. In 2001, the United 
States received 28 percent of international students; by 2011 that 
share had decreased to 19 percent.\36\ Countries such as Canada, the 
United Kingdom, New Zealand, Australia, Malaysia, Taiwan, and China are 
actively instituting new strategies to attract international 
students.\37\
---------------------------------------------------------------------------

    \35\ Pew Research Center, ``Growth from Asia Drives Surge in 
U.S. Foreign Students'' (June 18, 2015), available at http://www.pewresearch.org/fact-tank/2015/06/18/growth-from-asia-drives-surge-in-u-s-foreign-students/ (citing Institute for International 
Education, Open Doors Data: International Students: Enrollment 
Trends, available at http://www.iie.org/Research-and-Publications/Open-Doors/Data/International-Students/Enrollment-Trends/1948-2014.
    \36\ Organization for Economic Co-operation and Development 
(OECD) 2014, ``Education at a Glance 2014: OECD Indicators,'' OECD 
Publishing at http://dx.doi.org/10.1787/eag-2014-en or http://www.oecd.org/edu/eag.htm.
    \37\ University World News Global Edition Issue 376, ``Schools 
are the New Battleground for Foreign Students'' (July 15, 2015), 
available at http://www.universityworldnews.com/article.php?story=201507150915156.
---------------------------------------------------------------------------

    For example, Canada also recognizes that educational institutions 
need international students to compete in the ``global race for 
research talent.'' \38\ In April, 2008, Canada modified its Post-
Graduation Work Permit Program to allow international students who have 
graduated from a recognized Canadian post-secondary institution to stay 
and gain valuable post-graduate work experience for a period equal to 
the length of the student's study program, up to a maximum of three 
years, with no restrictions on type of employment.\39\ This change 
resulted in a steady increase between 2003 and 2007 in the number of 
post-graduation work permits issued to international students, followed 
by a sharp increase of 64 percent from 2007 to 2008.\40\ By 2014, the 
number of international students in the program was more than double 
its 2008 total.\41\ In addition, Canada aims to double the number of 
international students in the country from 211,949 in 2014 to 450,000 
by 2022.\42\
---------------------------------------------------------------------------

    \38\ Citizenship and Immigration Canada, ``Evaluation of the 
International Student Program'' 14 (July 2010) available at http://www.cic.gc.ca/english/pdf/research-stats/2010-eval-isp-e.pdf (citing 
Association of Universities and Colleges of Canada, Momentum: The 
2008 report on university research and knowledge mobilization: A 
Primer: Driver 2: Global race for research talent, 3 (2008) 
[hereinafter Evaluation of the Int'l Student Program].
    \39\ Citizenship and Immigration Canada, Study permits: Post 
Graduation Work Permit Program, available at http://www.cic.gc.ca/english/resources/tools/temp/students/post-grad.asp [hereinafter 
Canadian Study permits]. Similarly, Australia, now offers 
international students who graduate with a higher education degree 
from an Australian education provider, regardless of their field of 
study, a post-study work visa for up to four years, depending on the 
student's qualification. Students who complete a bachelor's degree 
may receive a two-year post study work visa, research graduates with 
a master's degree are eligible for a three-year work visa, and 
doctoral graduates are eligible for a four-year work visa. See 
Australian Department of Immigration and Border Protection, 
Application for a Temporary Graduate visa, available at http://www.border.gov.au/FormsAndDocuments/Documents/1409.pdf [hereinafter 
Australian Temporary Grad. visa].
    \40\ Evaluation of the Int'l Student Program, supra note 38, at 
9.
    \41\ Citizenship and Immigration Canada, Quarterly 
Administrative Data Release, available at http://www.cic.gc.ca/english/resources/statistics/data-release/2014-Q4/index.asp.
    \42\ See Government of Canada, Quarterly Administrative Data 
Release (July 20, 2015), available at http://www.cic.gc.ca/english/resources/statistics/data-release/2014-Q4/index.asp; University 
World News Global Edition, Schools are the New Battleground for 
Foreign Students, July 15, 2015, Issue 376, available at http://www.universityworldnews.com/article.php?story=201507150915156.
---------------------------------------------------------------------------

    In light of the United States' decreasing share of international 
students, and increased global efforts to attract them, DHS concludes 
that the United States must take additional steps to improve these 
students' educational experience (both academic and practical) to 
ensure that we do not continue to lose ground. This is particularly 
true for international STEM students, who have comprised a

[[Page 13049]]

significant portion of students in STEM degree programs in the United 
States, particularly at the graduate degree level.
    The difference is particularly notable at the doctoral level, where 
international students earned 56.9 percent of all doctoral degrees in 
engineering; 52.5 percent of doctoral degrees in computer and 
information sciences; and approximately half the doctoral degrees in 
mathematics and statistics in the 2012-2013 academic year.\43\ 
Recognizing that the international education programs for these 
students are increasingly competitive, DHS is committed to helping U.S. 
educational institutions contend with the expanded and diverse global 
opportunities for international study.
---------------------------------------------------------------------------

    \43\ Pew Research Center, ``Growth from Asia Drives Surge in 
U.S. Foreign Students'' (June 18, 2015), available at http://www.pewresearch.org/fact-tank/2015/06/18/growth-from-asia-drives-surge-in-u-s-foreign-students/.
---------------------------------------------------------------------------

3. The Need To Improve the Existing STEM OPT Extension
    With this rule, DHS also recognizes the need to strengthen the 
existing STEM OPT extension to enhance the integrity and educational 
benefit of the program in order to help maintain the nation's economic, 
scientific, and technological competitiveness. DHS is working to find 
new and innovative ways to encourage international STEM students to 
choose the United States as the destination for their studies. This 
rule, in addition to including a modified version of the STEM OPT 
extension from the 2008 IFR, increases the maximum training time period 
for STEM students, requires a formal training plan for each STEM OPT 
extension, and strengthens protections for U.S. workers. Providing an 
on-the-job educational experience through a U.S. employer qualified to 
develop and enhance skills through practical application has been DHS's 
primary guiding objective in crafting this rule.
    Many of the elements of the 2015 NPRM were based on public comments 
on the 2008 IFR, which contained input from a range of stakeholders, 
including students and the broader academic community. The NPRM also 
incorporated recommendations from the Homeland Security Academic 
Advisory Committee.\44\ DHS continues to find that the changes proposed 
by this rule to the existing STEM OPT extension would benefit both F-1 
students and international study programs in the United States, while 
adding important protections.
---------------------------------------------------------------------------

    \44\ The Homeland Security Academic Advisory Council provides 
advice and recommendations to the Secretary and senior leadership on 
matters related to homeland security and the academic community, 
including: student and recent graduate recruitment, international 
students, academic research and faculty exchanges, campus 
resilience, homeland security academic programs, and cybersecurity. 
See U.S. Department of Homeland Security, Homeland Security Academic 
Advisory Council Charter, available at http://www.dhs.gov/publication/hsaac-charter.
---------------------------------------------------------------------------

    The changes will allow F-1 STEM students to gain valuable on-the-
job training from qualified employers. Maintaining and enhancing 
practical training for STEM students improves their ability to absorb a 
full range of project-based skills and knowledge directly related to 
their study. The changes will also help the nation's colleges and 
universities remain globally competitive, including by improving their 
ability to attract international STEM students to study in the United 
States. As noted above, these students enrich the academic and cultural 
life of college and university campuses throughout the United States 
and make important contributions to the U.S. economy and academic 
sector. The changes will help strengthen the overall F-1 program in the 
face of growing international competition for the world's most 
promising international students.
    Additionally, safeguards such as employer attestations, requiring 
employers to enroll in and remain in good standing with E-Verify, 
providing for DHS site visits, and requiring that STEM training 
opportunities provide commensurate terms and conditions to those 
provided to U.S. workers will help protect both such workers and STEM 
OPT students. Implementing the changes in this rule thus will more 
effectively help STEM OPT students achieve the objectives of their 
courses of study while also benefiting U.S. academic institutions and 
guarding against adverse impacts on U.S. workers.

IV. Discussion of Comments and Final Rule

    As noted above, during the public comment period, 50,500 comments 
were submitted on the NPRM and related forms. Comments were submitted 
by a range of entities and individuals, including U.S. and 
international students, U.S. workers, schools and universities, 
professional associations, labor organizations, advocacy groups, 
businesses, and other interested persons. Many commenters provided 
concrete suggestions that DHS has evaluated and responded to in order 
to build upon the proposed rule and to better explain its provisions. 
Overall,\45\ comments were primarily positive, but there were many 
criticisms as well.
---------------------------------------------------------------------------

    \45\ In addition, DHS also received a number of comments that 
were outside the scope of the rulemaking. For instance, some 
commenters stated that DHS should not allow any foreign nationals to 
work in the United States. Other commenters recommended that DHS 
make changes to the H-1B visa classification. Another commenter 
stated that the United States should ``send green cards to [STEM] 
Ph.D.s right away.'' Other commenters recommended that DHS apply the 
proposed rule's requirements to F-1 nonimmigrant students engaged in 
pre-completion OPT or the initial 12-month period of post-completion 
OPT. Additionally, one commenter requested that DHS extend the 
period during which students may apply for post-completion OPT and 
related employment authorization. DHS did not propose any of these 
changes in the NPRM, and readers of the NPRM could not reasonably 
have anticipated that DHS would make such changes in this final 
rule. Accordingly, DHS has deemed these and similar comments outside 
the scope of this rulemaking, and has not discussed them further in 
this preamble.
---------------------------------------------------------------------------

    A number of commenters expressed general opposition to the NPRM. 
For instance, some stated that the proposed rule would not serve the 
national interest because it would harm U.S. workers, especially recent 
graduates with STEM degrees. Commenters also suggested that there was 
insufficient demand for STEM workers in the U.S. labor market to 
accommodate STEM OPT students. Other commenters were concerned that 
STEM OPT students would send their wages back to their home countries. 
Based on these and other concerns, various commenters requested that 
DHS place a moratorium on practical training and related programs 
until, for instance, every qualified U.S. citizen has a job. Another 
commenter requested that STEM OPT be phased out entirely after the 
current participants finish their training.
    On the whole, however, commenters largely expressed support for the 
proposed rule. Commenters stated that the NPRM would ``make[] a number 
of important, thoughtful changes to improve and enhance the 
opportunities available to F-1 students with STEM degrees''; that the 
proposed rule struck a reasonable balance by distributing requirements 
among all who participate in STEM OPT, including international 
students, institutions of higher education, and employers; and that the 
proposed Mentoring and Training Plan requirement would improve the STEM 
OPT extension by clearly identifying the students' learning objectives 
and the employer's commitments.
    DHS thanks the public for its extensive input during this process. 
In the discussion below, DHS summarizes and responds to all comments 
that were timely submitted on the NPRM.

[[Page 13050]]

A. Including a STEM OPT Extension Within the OPT Program

1. Description of Final Rule and Changes From NPRM
    Consistent with the NPRM, this final rule provides for STEM OPT 
extensions as part of the OPT program under the F-1 nonimmigrant 
classification. This action will better ensure, among other important 
national interests, that the U.S. academic sector can remain globally 
competitive. Enabling extended practical training for qualifying 
students with experience in STEM fields is consistent with DHS's 
``Study in the States'' initiative, announced after the 2008 IFR in 
September 2011, to encourage international students to study in the 
United States. That initiative particularly has focused on enhancing 
our nation's economic, scientific and technological competitiveness by 
finding new ways to encourage talented international students to become 
involved in expanded post-graduate opportunities in the United States. 
The initiative has taken various steps to improve the Nation's 
nonimmigrant student programs.\46\
---------------------------------------------------------------------------

    \46\ See DHS, ``Study in the States,'' http://studyinthestates.dhs.gov.
---------------------------------------------------------------------------

    The final rule enhances the ability of F-1 students to achieve the 
objectives of their courses of study while also benefiting the U.S. 
economy. More students will return home confident in their training and 
ready to begin a career in their field of study; others may seek to 
change status to other nonimmigrant classifications consistent with 
section 248 of the INA, 8 U.S.C. 1258, following a STEM OPT extension, 
thus furthering economic growth and cultural exchange in the United 
States.
    Before discussing and responding to public input on the substantive 
terms of the STEM OPT extension program proposed in the 2015 NPRM, DHS 
first addresses comments providing input on whether STEM OPT extensions 
should be authorized at all. As discussed below, the STEM OPT extension 
rule is grounded in the long-standing recognition by DHS and its 
predecessor agency that (1) experiential learning and practical 
training are valuable parts of any post-secondary educational 
experience and (2) attracting and retaining international students is 
in the short- and long-term economic, cultural, and security interests 
of the United States. Thousands of comments expressed an opinion on one 
or both of these two points, either challenging or supporting the 
proposal to include a STEM OPT extension within the OPT program. A 
significant number of commenters discussed the taxation rules 
applicable to F-1 students; some asserted that no STEM OPT extension 
was appropriate as long as certain F-1 students remained exempt from 
certain payroll or employment taxes. Lastly, some commenters questioned 
the Department's legal authority to include a STEM OPT extension within 
the OPT program, while others maintained that a solid legal basis 
exists for such extensions. The final rule retains STEM OPT extensions 
as part of the OPT program and explains in detail the underpinnings of 
this policy by responding in full to the many policy-related comments 
received from the public.
2. Public Comments and Responses
i. Experiential Learning as Part of Completing a Full Course of Study
    Numerous commenters submitted views regarding the proposition that 
experiential learning opportunities such as practical training can 
significantly enhance the knowledge and skills obtained by students 
during academic study, thus furthering their courses of study in the 
United States.
    Comment. DHS received hundreds of comments, mostly from students 
and universities, stating that experiential learning and practical 
training are key parts of university education. DHS also received 
comments challenging this premise. One commenter, for example, strongly 
disagreed ``that the objective of the students' course of study 
includes the acquisition of knowledge through on-the-job `training.' '' 
Instead, this commenter stated that ``the sole objective of the F-1 
student's course of study is to obtain the desired degree and nothing 
more.'' According to the commenter, ``[o]nce that objective has been 
achieved, the purpose of the F-1 status has been fulfilled and the 
status should terminate.''
    Many universities and higher education associations, however, made 
statements to the contrary. Twelve higher education associations--
representing land-grant universities, research universities, human 
resource professionals at colleges and universities, registrars, 
graduate schools, international student advisors, and religious 
colleges and universities, among others--jointly filed a comment 
stating that ``experiential learning is a key component of the 
educational experience.'' These higher education associations stated 
that:

    OPT allows students to take what they have learned in the 
classroom and apply ``real world'' experience to enhance learning 
and creativity while helping fuel the innovation that occurs both on 
and off campus. . . . Learning through experience is distinct from 
learning that takes place in the classroom. Experiential learning 
opportunities have become an integral part of U.S. higher education.

    Universities individually made similar points, emphasizing the 
value of experiential learning. DHS received comments on this point 
from a range of public and private institutions of higher education. 
For example, one university stated that experiential learning 
opportunities are particularly critical in ``STEM fields where hands on 
work supplements classroom education.'' Another university stated that 
``experiential learning fosters the capacity for critical thinking and 
application of knowledge in complex or ambiguous situations.'' Other 
university commenters stated that experiential learning ``is a 
necessary component of a 21st century education, especially in the STEM 
fields.''
    A national organization of graduate and professional students 
stated that offering a STEM OPT extension after bachelor's level 
studies allowed individuals to ``identify research interests and 
develop skills'' that they later can expand upon in their graduate 
studies when they focus on solving concrete problems. An organization 
representing international educators stated that the OPT program 
appropriately focuses on the critical part of an education that occurs 
in partnership with employers.
    An organization that serves U.S. institutions engaged in 
international educational and cultural exchange stated that ``extended 
OPT eligibility creates space for more meaningful interactions between 
international OPT participants and their U.S. host employers.'' Other 
comments stated that a recent membership survey found that 89 percent 
of responding employers found that OPT participants ``work in 
conjunction with U.S. workers in a way that promotes career development 
for everyone involved.'' A business association stated that ``practical 
training allows foreign students in technical fields to maximize the 
return on their investment in education.''
    Response. The Department agrees with the many U.S. universities and 
educational- and international-exchange organizations that provided 
comments stating that STEM OPT extensions would enhance the educational 
benefit provided to eligible students through practical training. DHS 
agrees that practical training is an accepted and important part of 
international post-secondary education.

[[Page 13051]]

    Comment. One commenter asserted that OPT had ``limited (if any) 
education[al] value'' while noting that he ``was unable to find any 
comment where someone described how the OPT program is related to a 
course of study or is a means to achieve specific educational goals.'' 
Many comments, however, described how practical training is related to 
a course of study and serves as a means to achieve educational goals. 
In addition to the comments described above from academic associations 
and educational institutions, the Department received many comments 
from F-1 students describing the educational benefits that the OPT 
program provides both to students and to academic programs. Examples of 
such comments include the following:
     ``OPT allows international students the opportunity to 
engage in practical application of skills learned in academic 
programs.''
     ``[A]s an extension of college education, OPT extension is 
a great way to apply what's learnt in class to our real industry.''
     ``This experiential learning will allow me to integrate 
knowledge and theory learned in the classroom with practical 
application and skills development in a professional setting.''
     ``The proposal to reinstitute the STEM extension will 
provide valuable hands-on, educational experience in which STEM 
graduates gain real-world immersion into a chosen industry.''
     ``The new rule will allow me to meet my planned learning 
goals and allow for active reflection on [what] I am accomplishing 
throughout the experience.''
    Response. Consistent with many of the comments received from 
academic associations, educational institutions, and F-1 students, DHS 
agrees that the OPT program enriches and augments a student's 
educational experience by providing the ability for students to apply 
in professional settings the theoretical principles they learned in 
academic settings. By promoting the ability of students to experience 
first-hand the connection between theory in a course of study and 
practical application, including by applying abstract concepts in 
attempts to solve real-world problems, the OPT program enhances their 
educational experiences. A well-developed capacity to work with such 
conceptualizations in the use of advanced technology, for example, is 
critical in science-based professions. Practical training programs 
related to STEM fields also build competence in active problem solving 
and experimentation, critical complements to academic learning in STEM 
fields. As many commenters attested, practical training is an important 
avenue for enhancing one's educational experience, particularly for 
STEM students.
    Comment. A research organization contested the educational basis 
for providing two-year STEM OPT extensions in part by noting that the 
ACT testing organization (previously known as American College Testing) 
has published a ``world of work map'' stating that ``a bachelor's 
degree is sufficient for electrical engineering jobs'' without 
discussing any extended period of practical training. The commenter 
also pointed out that the Department of Labor's Occupational Outlook 
Handbook states that in order to become an electrical engineer one 
``must have a bachelor's degree'' and that ``[e]mployers also value 
practical experience, so participation in cooperative engineering 
programs, in which students earn academic credit for structured work 
experience, is valuable as well.'' According to the commenter, the 
standard OPT duration of 12 months is more than sufficient to become a 
fully trained engineer, as that is the duration of typical cooperative 
engineering programs.
    Response. DHS rejects the notion that ACT's ``world of work map,'' 
a career planning tool for high school students, attempts to describe 
anything other than the educational degree level typically required for 
entry into an occupation. The ACT's career planning map takes no 
position on whether and to what extent on-the-job training and 
experiences help launch a career, enhance an educational program, or 
help facilitate mastery of material learned in the classroom. The 
Occupational Outlook Handbook of the Department of Labor similarly does 
not assess the relevancy of experiential learning theory or the extent 
to which on-the-job training complements classroom learning as part of 
post-secondary education. Instead, the Occupational Outlook Handbook 
identifies the typical level of degree or education that most workers 
need to enter the electrical engineering occupation and the extent to 
which additional training is needed (post-employment) to attain 
competency in the skills needed in the occupation.\47\ The fact that 
cooperative education programs in engineering may typically focus on 
the equivalent of one year of employment experience for academic credit 
is not determinative with regard to the type or length of experiential 
learning that can be considered part of a full course of study. 
Cooperative education is one type of experiential learning, but not the 
only type used by the nation's higher education community.\48\
---------------------------------------------------------------------------

    \47\ BLS, Occupational Outlook Handbook, at ``Occupation 
Finder'' (Dec. 17, 2015), available at http://www.bls.gov/ooh/occupation-finder.htm?pay=&education=&training=&newjobs=&growth=&submit=GO (see 
information defining ``entry-level education'' and ``on-the-job 
training'' for the Occupation Finder).
    \48\ The commenter questioning the educational basis of the STEM 
OPT extension referred to the co-op program at the Rochester 
Institute of Technology (RIT) as a useful example, since it is one 
of the nation's largest. RIT itself, though, recognizes that co-ops 
are just one type of experiential learning. See generally RIT, 
Cooperative Education and Experiential Learning, https://www.rit.edu/overview/cooperative-education-and-experiential-learning.
---------------------------------------------------------------------------

    Comment. A commenter stated that DHS had not ``provided any 
evidence . . . indicating that'' nonimmigrant students lack access to 
similar opportunities in their home countries.
    Response. The United States hosts F-1 students from all over the 
world. Although DHS acknowledges that some students will have access to 
similar training opportunities in their home countries, DHS believes it 
is self-evident that many will not. In any case, the purpose of the 
rule is not simply to address a gap in training opportunities for F-1 
students in their home countries but to help students develop their 
knowledge and skills through practical application, and to ensure that 
our nation's colleges and universities remain globally competitive in 
attracting international STEM students to study and lawfully remain in 
the United States.
    Comment. Some commenters asked DHS to reconsider the requirement 
that students be engaged in STEM OPT solely related to their fields of 
study.
    Response. The Department has historically required the OPT 
experience to be directly related to the student's major fields of 
study because, at its core, such work-based learning is a continuation 
of the student's program of study. Indeed, the purpose of OPT is to 
better position students to begin careers in their fields of study by 
providing ways for them to supplement and enhance the knowledge they 
gained in their academic studies through application of that knowledge 
in work settings. Allowing such students to engage in OPT in areas 
unrelated to their fields of study would be inconsistent with the 
purpose of OPT.
    OPT's required nexus to the field of study also minimizes potential 
abuse or exploitation of international students by those seeking to 
impermissibly employ them in unskilled labor or other unauthorized work 
in the United States. Moreover, this requirement is consistent

[[Page 13052]]

with current regulations applicable to OPT more broadly; under these 
regulations, OPT must be directly related to the student's major area 
of study. See 8 CFR 214.2(f)(10)(ii)(A). For these reasons, DHS has 
determined that it will not permit a student to engage in STEM OPT in 
an area not related to his or her field of study.
ii. International Students and the National Interest
    A variety of comments addressed whether the STEM OPT extension 
benefited STEM OPT students, U.S. institutions of higher education, and 
the overall national interest. Some commenters stated that the STEM OPT 
extension would provide such benefits and supported the proposed rule 
for these or related reasons; others stated that the proposed rule 
would negatively impact the employment options of U.S. STEM graduates 
and workers. The Department had carefully considered these issues in 
developing the NPRM, and has further evaluated these issues as raised 
in the public comments. The Department's consideration of these issues 
is reflected in the discussion that immediately follows and throughout 
this preamble.
    Comment. One commenter stated that a recent study ``shows that 
American students who actively interact with their international 
classmates are more likely to enhance their own self-confidence, 
leadership and quantitative skills.'' \49\ Another commenter, however, 
stated that in explaining the STEM OPT extension DHS had cited ``no 
evidence of a measurable `academic benefit' other than increased income 
for U.S. institutions of higher education.'' This commenter stated that 
any such increased income would be ``irrelevant to the OPT program, 
where F-1 students do NOT pay tuition, at premium or standard rates, to 
the academic institution from which they received a STEM degree.'' The 
commenter also stated that STEM OPT employment does not and cannot 
provide ``enhance[ed] academic discourse and cultural exchange on 
campuses,'' and that there is an internal conflict in the dual goal of 
bringing ``knowledge and skills'' to the U.S. economy through the STEM 
OPT extension, and helping STEM OPT students acquire knowledge and 
skills.
---------------------------------------------------------------------------

    \49\ See generally Jiali Luo and David Jamieson-Drake, 
``Examining the Educational Benefits of Interacting with 
International Students'' at 96 (June 2013), available at https://jistudents.files.wordpress.com/2013/05/2013-volume-3-number-3-journal-of-international-students-published-in-june-1-2013.pdf.
---------------------------------------------------------------------------

    A university commenter, however, suggested that DHS should consider 
it a priority to finalize the STEM OPT extension rule in a way that 
ensures universities remain internationally competitive. Representative 
of many comments from higher education, another university commenter 
strongly supported the STEM OPT extension within the OPT program. The 
commenter stated that ``if the United States is to maintain our 
economic, educational, and scientific competitiveness then it must 
continue to make itself attractive to the best talent worldwide.'' 
Another commenter, who identified as an F-1 student, noted that many 
people from his home country have degrees earned abroad, and that a 
``U.S.-university degree alone is not valued as [highly] as it was 10 
or 20 years ago.'' This commenter stated that ``experience on a 
complete project'' will provide him an advantage over students who 
studied in countries that don't provide similar kinds of training 
opportunities.
    Response. The STEM OPT extension program is designed to address the 
very point raised by the final commenter, i.e., that the program will 
improve and expand the educational and training opportunities available 
to international students and maintain and improve the competitiveness 
of American institutions of higher education. As explained in the NPRM, 
see 80 FR 63383-84, there is increasing international competition for 
attracting top international students, and other countries, including 
Canada and Australia, currently have programs similar to the STEM OPT 
extension. The STEM OPT extension serves to maintain the United States' 
global competitiveness in these rapidly evolving fields. As discussed 
in the NPRM, see, e.g., 80 FR 63382-84, this provides benefits to the 
U.S. economy that are independent of any need (or lack thereof) of STEM 
workers in the United States.
    As noted in the NPRM, in light of increased global efforts to 
recruit international students, DHS believes that the United States 
must take additional steps to improve available educational experiences 
(both academic and practical) to ensure that the United States remains 
competitive for such students. Such steps benefit the U.S. academic 
sector by contributing to its economic support and increasing academic 
diversity. This is particularly true with regard to international STEM 
students, who have comprised a significant portion of students in STEM 
degree programs in the United States, particularly at the graduate 
degree level. While it is of course true that, as a commenter noted, 
OPT students do not pay tuition during their practical training, it is 
reasonable to assume the increased attractiveness of U.S. colleges and 
universities due to the availability of OPT will benefit the U.S. 
academic sector. DHS's conclusions about the benefit of the STEM OPT 
extension to the F-1 student program and U.S. educational institutions 
found broad support in the comments submitted by educational 
institutions themselves.
    Comment. A significant number of commenters discussed whether STEM 
OPT participants positively or negatively impacted U.S. workers and 
U.S. students, with differing views on whether nonimmigrant STEM 
professionals complemented or replaced U.S. STEM professionals. Some 
commenters cited their personal experience as STEM workers, or the 
experience of others they know, to demonstrate the existence of either 
a labor surplus or a labor shortage. Many others cited and attached 
reports and studies to show there was either a labor surplus or a labor 
shortage.
    A number of commenters stated that allowing employers to hire F-1 
students on a STEM OPT extension would disadvantage U.S. citizens and 
lawful permanent residents. Some of these commenters, as well as other 
commenters, provided facts and figures suggesting there was not a labor 
shortage of STEM workers. For example, some commenters stated that 
wages have not increased, as would be expected during a shortage, and 
some of these commenters cited to a report from the Economic Policy 
Institute that found that wages in the information technology sector 
``have remained flat, with real wages hovering around their late 1990s 
levels.'' \50\ Some commenters provided data that contradicted these 
claims. For example, one commenter stated that STEM workers receive a 
persistent wage premium and that wages for engineers are rising 
relative to other occupations.
---------------------------------------------------------------------------

    \50\ Hal Salzman, Daniel Kuehn, Lindsay Lowell, Guestworkers in 
the High-Skill U.S. Labor Market: An Analysis of Supply, Employment, 
and Wages 2 (Economic Policy Institute, Apr. 2013) available at 
http://www.epi.org/publication/bp359-guestworkers-high-skill-labor-market-analysis/.
---------------------------------------------------------------------------

    Commenters cited data and reports on both sides of the question of 
whether there were sufficient numbers of qualified U.S. workers 
available to fill open STEM jobs in the U.S. economy. One commenter 
stated that there were over 102,000 unemployed engineers. Another 
commenter stated that there were two million unemployed Americans with 
STEM degrees. A number of commenters, however, stated that even with 
millions of unemployed

[[Page 13053]]

Americans, ``the manufacturing sector cannot find people with the 
skills to take nearly 600,000 unfilled jobs, according to a study last 
fall by the Manufacturing Institute and Deloitte.'' \51\ One commenter 
stated that ``unemployment rates in key STEM occupations are 
dramatically lower'' than the overall unemployment rate in the United 
States, citing to 2.8 percent unemployment in ``computer and 
mathematical occupations'' and 2.2 percent unemployment in 
``architecture and engineering occupations,'' among others.
---------------------------------------------------------------------------

    \51\ See generally Manufacturing Institute et al, ``The Skills 
Gap in Manufacturing: 2015 and Beyond'' (Mar. 2015), available at 
http://www.themanufacturinginstitute.org/Research/Skills-Gap-in-Manufacturing/Skills-Gap-in-Manufacturing.aspx.
---------------------------------------------------------------------------

    Response. DHS recognizes, as explained by the National Science 
Foundation (NSF), that close study reveals that there is no 
straightforward answer on whether the United States has a surplus or 
shortage of STEM workers.\52\ As the NSF summarizes:
---------------------------------------------------------------------------

    \52\ NSF, Revisiting the STEM Workforce: A Companion to Science 
and Engineering Indicators 2014, 9 (Feb. 4, 2015), available at 
http://www.nsf.gov/pubs/2015/nsb201510/nsb201510.pdf.

    Some analysts contend that the United States has or will soon 
face a shortage of STEM workers. Some point to labor market signals 
such as high wages and the fact that STEM vacancies are advertised 
for more than twice the median number of days compared to non-STEM 
jobs. Other analysts note that the shortage of STEM workers is a 
byproduct of the ability of STEM-capable workers to ``divert'' into 
other high-skill occupations that offer better working conditions or 
pay. Relatedly, some say even if the supply were to increase, the 
United States might still have a STEM worker shortage because an 
abundance of high-skill workers helps drive innovation and 
competitiveness and this might create its own demand.
    Those analysts who contend the United States does not have a 
shortage of STEM workers see a different picture. They suggest that 
the total number of STEM degree holders in the United States exceeds 
the number of STEM jobs, and that market signals that would indicate 
a shortage, such as wage increases, have not systematically 
materialized. Analysts also raise concerns about labor market 
dynamics in academia--where a decreasing share of doctoral degree 
holders employed in the academic sector are tenured--and in 
industry--where there are reports that newly-minted degree holders 
and foreign ``guestworkers'' on temporary visas (e.g., H-1B, L-1) 
are displacing incumbent workers. A few of these analysts go as far 
as to argue that firms claim shortages and mismatches in the hope of 
lowering compensation and training costs.
    Close study of the surplus-shortage question reveals that there 
is no straightforward ``yes'' or ``no'' answer to whether the United 
States has a surplus or shortage of STEM workers. The answer is 
always ``it depends.'' It depends on which segment of the workforce 
is being discussed (e.g., sub-baccalaureates, Ph.D.s, biomedical 
scientists, computer programmers, petroleum engineers) and where 
(e.g., rural, metropolitan, ``high-technology corridors''). It also 
depends on whether ``enough'' or ``not enough STEM workers'' is 
being understood in terms of the quantity of workers; the quality of 
workers in terms of education or job training; racial, ethnic or 
gender diversity, or some combination of these considerations.\53\
---------------------------------------------------------------------------

    \53\ Id.

    DHS credits NSF's views on this matter. Although DHS acknowledges 
that commenters submitted a range of data related to the current state 
of the overall U.S. STEM labor market (and DHS discusses much of this 
data in more detail below), DHS does not rely on this data to finalize 
the rule. Instead, this rule is based on the widely accepted 
proposition that educational and cultural exchange, a strong post-
secondary education system, and a focus on STEM innovation are, on the 
whole, positive contributors to the U.S. economy and U.S. workers and 
in the overall national interest. As noted above, these principles, 
combined with the labor market protections and other measures included 
in this rule, generally provide the basis for the Department's action.
    Comment. Many commenters stated that data released by the U.S. 
Census Bureau in 2014 showed that three-quarters of American STEM 
graduates were not working in STEM fields. The implication was that 
such data indicated no need for the STEM OPT extension program and that 
such a program would not benefit the national interest.
    Response. The 2014 Census Bureau data cited by commenters did 
identify that only about one-quarter of bachelor's level graduates with 
STEM degrees are employed in STEM fields.\54\ The Census Bureau, 
however, made no accounting of STEM graduates that use the technical 
skills developed in their STEM courses in high-skilled jobs in 
medicine, law, business, academia, or management. For example, for 
purposes of the Census Bureau study, an individual with a chemistry 
degree who becomes a physician is considered a STEM graduate not 
employed in a STEM field.\55\ The cited 2014 Census Bureau figures are 
skewed in this regard. A 2013 analysis from the Census Bureau found 
that more than one out of five U.S. STEM graduates who were not 
employed in a core STEM field were working in a managerial or business 
position utilizing quantitative skills developed through their STEM 
studies and often directly related to their degree; that more than one 
in eight STEM graduates were working in healthcare (including 594,000 
who were working as physicians); and that another 522,000 were 
considered outside of STEM, but working in U.S. colleges and 
universities, where they were teaching in the field of their STEM major 
and educating the next generation of STEM workers.\56\ In short, as 
pointed out by the U.S. Congress Joint Economic Committee, 
``differences in definitions across sources can complicate comparisons 
or analyses of trends in STEM.'' \57\
---------------------------------------------------------------------------

    \54\ U.S. Census Bureau, ``Where do College Graduates Work: A 
Special Focus on Science, Technology, Engineering and Math'' (July 
2014), available at http://www.census.gov/dataviz/visualizations/stem/stem-html/.
    \55\ The practice of medicine commonly is not considered to be a 
STEM field. NSF, for example, considers as its mission the support 
of all fields of science and engineering except for the medical 
sciences. See NSF Mission Statement, available at http://www.nsf.gov/about/what.jsp. See also, e.g., U.S. Congress Joint 
Economic Committee, STEM Education: Preparing for the Jobs of the 
Future 1 (April 2012) (explaining that the medical sciences are not 
a STEM field), available at http://www.jec.senate.gov/public/index.cfm/democrats/2012/4/stem-education-preparing-jobs-of-the-future.
    \56\ Liana Christin Landivar, U.S. Census Bureau, The 
Relationship between Science and Engineering Education and 
Employment in STEM Occupations (Sept. 2013), available at http://www.census.gov/prod/2013pubs/acs-23.pdf?cssp=SERP.
    \57\ See U.S. Congress Joint Economic Committee, STEM Education: 
Preparing for the Jobs of the Future 1 (April 2012) (explaining that 
the medical sciences are not a STEM field), available at http://www.jec.senate.gov/public/index.cfm/democrats/2012/4/stem-education-preparing-jobs-of-the-future; see also David A. Koonce, Jie Zhou, 
Cynthia D. Anderson, American Society for Engineering Education, 
``What is STEM?'' (2011) available at http://www.asee.org/public/conferences/1/papers/289/download (explaining that ``research 
institutes, government organizations and occupational groups, as 
well as different groups involved in STEM, use different definitions 
of STEM, based on their perspectives'').
---------------------------------------------------------------------------

    DHS disagrees that the U.S. Census data point to an across-the-
board shortage of degree-related employment opportunities for U.S. STEM 
graduates as the disparate definitions make that conclusion unlikely. 
DHS believes that many of the concerns identified about the proposed 
rule are overstated or incomplete because of the nature of available 
data and reporting.
    Comment. A few commenters stated that DHS failed to consider the 
full range of research related to the proposed rule's underlying 
policies. One such commenter directed the Department's attention to two 
bibliographies publicly available on the Internet, and which were 
attached to the comment, because the commenter believed the sources

[[Page 13054]]

cited in the NPRM were ``funded by employers of cheap alien workers to 
justify the rule.'' One of these bibliographies identified 19 books, 
articles, and reports, most of which discuss the H-1B and L-1 visa 
programs. The second was an annotated bibliography assembled by a 
professor providing an assessment and criticism of four of the 
professor's articles and 23 other sources, principally related to H-1B 
work visas and employer-sponsored green cards.
    Response. DHS did not rely on sources of information funded by 
employers of ``cheap'' foreign labor to develop or justify the proposed 
rule. Among other sources, DHS cited the following sources: the 
National Bureau of Economic Research, NSF, the Journal of Labor 
Economics, the Congressional Research Service, the Brookings 
Institution, the American Economic Journal, the Pew Research Center, 
the Journal of International Students, the Organization for Economic 
Co-operation and Development, University World News, Citizenship and 
Immigration Canada (a Canadian government agency), the Department of 
Immigration and Border Protection of Australia (an Australian 
government agency), and the Homeland Security Academic Advisory 
Committee (a discretionary committee of the U.S. government established 
under the Federal Advisory Committee Act).
    Moreover, the commenter did not identify any specific findings in 
the sources cited in the bibliographies that would support a change to 
the Department's proposal. Many of the sources cited in the 
bibliography involved the H-1B and L-1 nonimmigrant visa programs, as 
well as employment-sponsored immigrant visa programs, rather than OPT. 
Significantly, although the organization that prepared the H-1B and L-1 
bibliography cited by the commenter also submitted a separate, detailed 
comment on the NPRM, the organization did not cite its bibliography or 
most of the sources contained therein as part of its submission. And in 
the course of reviewing the extensive bibliographies presented, the 
Department noted that at least one of the sources, which addressed 
permanent immigration and not OPT, concluded that ``international 
students studying in host country postsecondary institutions are 
particularly valued because they improve higher education, subsidize 
domestic students, contribute to national economies and, if they 
qualify, make valuable permanent residents because of their youth, 
occupational qualifications, language skills, and familiarity with host 
country customs and institutions.'' \58\
---------------------------------------------------------------------------

    \58\ Ray Marshall, Value-Added Immigration 187 (Economic Policy 
Institute, 2011).
---------------------------------------------------------------------------

    Comment. One commenter stated that the NPRM's references to U.S. 
patent rates for foreign-born individuals could not support the 
proposed rule because ``no nationality data for inventors is associated 
with patents, so studies linking rates of patenting to immigration 
policy are inherently bogus.'' Another commenter stated that although 
the NPRM cites publications by economist Dr. Jennifer Hunt for several 
assertions about higher rates of patenting and innovation by foreign-
born researchers in the United States, the NPRM did not mention a 
report published by the Economic Policy Institute (EPI) (a research 
organization) ``directly challenging [those] findings.'' The commenter 
questioned sources cited in the NPRM regarding patent rates for 
foreign-born workers in the United States.
    Response. DHS disagrees with the statement that ``no nationality 
data on inventors is associated with patents.'' One data source for 
citizenship and nationality data for U.S. patents is the Patent 
Application Information Retrieval Web site maintained by the U.S. 
Patent and Trademark Office.\59\ When applying for a patent, each 
listed inventor submits an oath or power of attorney form on which they 
must indicate citizenship. Other researchers have analyzed data from 
the Census Bureau, including the National Survey of College Graduates 
and the Integrated Public Use Microdata Series for the United States, 
in concert with patent information from the U.S. Patent and Trademark 
Office, to source citizenship and nationality figures for U.S. 
patents.\60\
---------------------------------------------------------------------------

    \59\ U.S. Patent and Trademark Office, Patent Application 
Information Retrieval http://portal.uspto.gov/pair/PublicPair. See 
also, e.g., Partnership for a New American Economy ``Patent Pending: 
How Immigrants are Reinventing the American Economy'' at 23 n. 2 
(June 2012).
    \60\ See, e.g., Jennifer Hunt et al, supra notes 28-29, in the 
appendices of the cited articles.
---------------------------------------------------------------------------

    With respect to the studies by Dr. Hunt, DHS notes that the NPRM 
cited those studies in support of the general proposition that STEM 
workers ``are fundamental inputs in scientific innovation and 
technological adoption, critical drivers of productivity growth in the 
United States.'' 80 FR 63383. The EPI study did not question this 
proposition. Rather, the EPI study examined a narrow band of STEM 
fields to show that ``immigrant workers, especially those who first 
came to the United States as international students, are in general of 
no higher talent than the Americans, as measured by salary, patent 
filings, dissertation awards, and quality of academic program.'' \61\ 
Specifically, the EPI finding is focused on whether foreign-born 
students who earned computer science and electrical engineering degrees 
in the United States file patent applications at higher levels than 
U.S.-born students earning the same degrees. For electrical 
engineering, the analysis showed that patenting activity of U.S. and 
foreign-born students was about the same, while for computer science 
the analysis showed that foreign-born computer science students apply 
for somewhat fewer patents than do their American peers.
---------------------------------------------------------------------------

    \61\ Norman Matloff, ``Are Foreign Students the `Best and 
Brightest'?'' 17 (Economic Policy Institute, Feb 2013), available at 
http://epi.org/publication/bp356-foreign-students-best-brightest-immigration-policy/.
---------------------------------------------------------------------------

    The EPI paper, however, acknowledges that the Hunt studies cited in 
the NPRM cast a much broader net, encompassing a myriad of science and 
engineering fields. The Hunt papers considered the impact of foreign-
born workers employed in the United States in myriad visa 
classifications and fields of study, and was not focused solely on F-1 
students or STEM OPT students (nor to just Computer Science and 
Electrical Engineering research activity). As explained in the Hunt 
papers, there is support for the proposition that foreign-born 
scientists and engineers achieve higher rates of U.S. patent filings. 
The Department continues to believe such patent rates support the 
conclusion that the STEM OPT extension is in the national interest.
    Comment. Some commenters stated that the best interests of U.S. 
workers and students were not being considered by DHS. Some of these 
commenters, as well as others, also stated that the STEM OPT extension 
should exist only if there was a documented STEM labor shortage. Some 
commenters stated that the proposed STEM OPT extension would be harmful 
to U.S. workers and students.
    A commenting employer stated that while it prioritized U.S. worker 
hiring, it also hired foreign-born students that it recruited on U.S. 
campuses ``given the talent pool graduating from U.S. Ph.D. and M.S. 
STEM programs.'' The employer also stated: ``we spend millions of 
dollars annually above and beyond what we have to pay to hire U.S. 
workers, merely to employ the talent required to successfully run our 
business.'' Another commenter stated that ``it makes no sense for the 
United States to educate and train foreign

[[Page 13055]]

students in the STEM fields and then drive them away with obsolete 
immigration policies.''
    Response. The number of international STEM graduates in the United 
States on STEM OPT extensions, as of September 16, 2015, was 
approximately 34,000, which, according to estimates of the overall U.S. 
STEM labor market from the U.S. Department of Commerce and the U.S. 
Bureau of Labor Statistics (BLS), represents a possible range of 0.19 
percent \62\ to 0.45 percent of the overall U.S. STEM job market.\63\ 
For that reason, and in light of the worker protections included in 
this rule, the Department sees no reason to eliminate the STEM OPT 
extension altogether in response to concerns about impacts on U.S. 
workers. DHS instead seeks to balance the interests of stakeholders by 
both ensuring the availability of a STEM OPT extension program while 
strengthening program oversight and worker protections. The rule 
strengthens the integrity of the STEM OPT extension by requiring 
participants in the extension to carefully consider and document the 
relationship between the STEM OPT opportunity and the academic degree. 
The rule also adds requirements relating to supervision and direction 
of STEM OPT students in such jobs to better ensure the goals of the 
program are met. The rule also adds wage and other protections for STEM 
OPT students and U.S. workers.
---------------------------------------------------------------------------

    \62\ U.S. Bureau of Labor Statistics Detailed 2010 Standard 
Occupation Classification (SOC) occupations in STEM from an August 
2012 SOC Policy Committee recommendation to OMB, http://www.bls.gov/soc/Attachment_C_STEM.pdf. There are 184 occupations in STEM 
included in this list. When matched to the corresponding employment 
data in the BLS Occupational Employment and Wages, May 2014, the 
total employment of STEM occupations is approximately 17 million.
    \63\ U.S. Department of Commerce, Economic and Statistics 
Administration, David Langdon et al., ``STEM: Good Jobs Now and for 
the Future'' (1), July 2011, available at http://www.esa.doc.gov/sites/default/files/stemfinalyjuly14_1.pdf (``In 2010, there were 
7.6 million STEM workers in the United States.''). This STEM 
employment estimate is based on a narrower range of occupations.
---------------------------------------------------------------------------

    Comment. Numerous commenters repeated certain selected statements 
or figures on job creation or job loss related to international 
students in the United States. Hundreds of comments stated that 340,000 
U.S. jobs are created or supported each year by international students 
studying in the United States, citing figures from an international 
student economic value tool developed by NAFSA. A few hundred comments 
instead posited that 430,000 U.S. workers lost jobs over a recent five-
year period because of international students, as suggested by an 
analysis by one group. More than a dozen comments repeated the finding 
from an economist's study published by the American Enterprise 
Institute, in conjunction with the Partnership for New American 
Economy, that about 2.6 jobs for Americans are created for each 
foreign-born student who earns an advanced degree in the United States 
and then works in a STEM field.
    Response. This rule neither asserts nor relies on a quantified, 
direct relationship between job creation and the STEM OPT extension. At 
what rate such job creation occurs is unsettled in the peer-reviewed 
literature. To the Department's awareness, job loss rates tied solely 
to STEM OPT students have not been documented in peer-reviewed 
literature. The figures cited in the comments summarized above also do 
not relate solely to STEM OPT students.
    Comment. A commenter stated that although the proposed rule 
discussed the economic benefits of international students at length, 
DHS had not cited any estimate of the number of U.S. workers who were 
unable to obtain employment because a position was filled by a STEM OPT 
student or the number of U.S. workers otherwise adversely affected by 
the proposed rule.
    Response. DHS acknowledges that this rule includes neither a 
quantified estimate of potential negative impacts to individual U.S. 
workers nor a quantified estimate of specific benefits to U.S. 
educational institutions or the overall economy. Instead, the rule is 
based on the widely accepted proposition that educational and cultural 
exchange, a strong and competitive post-secondary education system, and 
a focus on STEM innovation are on the whole positive contributors to 
the U.S. economy and U.S. workers, and are in the national interest. A 
significant number of comments agreed; many observed that STEM students 
have contributed significantly to the U.S. economy. As noted above, 
these principles, combined with the labor market protections and other 
measures included in this rule, generally provide the basis for the 
Department's action.
    Comment. Some commenters stated that DHS had only considered 
studies supporting its conclusions and did not sufficiently review 
information that contradicted the sources cited by DHS. One commenter 
suggested that DHS ``go back to the drawing board and review the full 
range of related information,'' including the book ``Falling Behind,'' 
which questions whether the United States is falling behind in the 
global race for scientific and engineering talent.
    By contrast, one commenter stated that ``any change in quality of 
living is dependent on highly skilled STEM workers who are fundamental 
inputs in scientific innovation and technological adoption.'' Other 
commenters stated that ``STEM students have contributed immensely to 
the U.S. economy with their skills and innovation'' and that because 
``the U.S. STEM industry is at the forefront of technology in the 
world, international students come here to get the exposure and 
learn.''
    Some commenters flagged disagreement among economists with some of 
the findings included in a study published by the National Bureau of 
Economic Research (NBER) that extrapolates from the fundamental point 
for which it was cited by DHS.\64\ With respect to that study, some 
commenters criticized its conclusions, and some criticized the fact 
that it had not been peer-reviewed. Because the study had received some 
criticism, commenters asked DHS to defend its citation to it.
---------------------------------------------------------------------------

    \64\ Giovanni Peri, Kevin Shih, Chad Sparber, National Bureau of 
Economic Research, Foreign STEM Workers and Native Wages and 
Employment in U.S. Cities (May 2014), available at http://www.nber.org/papers/w20093.
---------------------------------------------------------------------------

    Response. DHS has carefully examined all of the commenters' views 
regarding the reasons provided for the proposed rule and the sources 
relied upon by DHS, and the Department believes adequate data and 
information has been provided in support of the rule. As noted 
throughout this preamble, DHS has reviewed studies submitted by 
commenters and finds that the basic approach in this rule appropriately 
balances the goals of protecting American workers and promoting 
American academic and economic competitiveness by attracting top 
quality international STEM students.
    With regard to the citation to the NBER study, the reference in the 
2015 NPRM was for the general proposition that STEM workers are 
fundamental inputs in scientific innovation and technological adoption, 
and therefore critical drivers of productivity growth in the United 
States.\65\ The NSF, among many others, has reached the same 
conclusion. Created by Congress in 1950, the NSF began publishing an 
annual report in 1955 regarding the condition of the science and 
engineering workforce, long before the term ``STEM''

[[Page 13056]]

was coined. According to the 2015 annual report, ``[t]his workforce is 
of particular interest to the Nation because of its central role in 
fostering innovation, economic competitiveness, and national 
security.'' \66\
---------------------------------------------------------------------------

    \65\ Id. The article starts by observing that ``Scientists, 
Technology professionals, Engineers, and Mathematicians (STEM 
workers) are fundamental inputs in scientific innovation and 
technological adoption, the main drivers of productivity growth in 
the U.S.'' and was cited as a recent example of this premise in 
footnote 24 in the NPRM. 80 FR at 63383.
    \66\ NSF, Revisiting the STEM Workforce: A Companion to Science 
and Engineering Indicators 2014, 5 (Feb. 4, 2015), available at 
http://www.nsf.gov/pubs/2015/nsb201510/nsb201510.pdf.
---------------------------------------------------------------------------

    Comment. A commenter requested that DHS annually publish data 
showing trends related to the impact of F-1 nonimmigrant students on 
labor markets in the United States. Another commenter stated that in 
order to improve oversight and understanding of our legal immigration 
system, relevant agencies should publish timely online information for 
each nonimmigrant visa category and subcategory, including for F-1 
nonimmigrant students with OPT. This commenter stated that the public 
disclosure should include the underlying raw data gathered from the 
proposed Mentoring and Training Plan and other relevant forms as to the 
gender, age, country of origin, level of training, field of training, 
institution(s) of higher education, job title, wages, employer, and 
work location for ``all OPT visa holders.'' According to the commenter, 
this disclosure would be a ``critical tool to empower advocates to 
ensure fair treatment and high standards within these visa programs.'' 
Multiple commenters stated that although they lacked full information, 
the collection and release of data on all nonimmigrant visa categories 
was needed as a tool to help curtail fraud and abuse in employment visa 
categories.
    Response. To the extent permissible under existing law (including 
under the Privacy Act and related authority), relevant information 
related to the STEM OPT extension program may be available through the 
Freedom of Information Act (FOIA) process. A DHS effort to provide data 
and a program evaluation of all nonimmigrant visa categories is not 
within the scope of the proposed rule and is not required by any 
current statute or regulation.
    Comment. One commenter stated that ``[t]he NPRM is procedurally and 
substantively arbitrary and capricious'' because ``DHS has entirely 
failed to provide a reasoned explanation of why its published policy 
rationale for the proposed rule has so fundamentally changed from that 
provided for the 2008 [IFR] that it now replaces.'' The commenter 
stated that DHS justified the 2008 IFR by asserting the need to provide 
labor to U.S. employers to remedy a critical labor shortage, but has 
justified the proposed rule by the need to continue and further enhance 
the educational benefit of the STEM OPT extension, while protecting 
STEM OPT students and U.S. workers. 80 FR 63381.
    Response. DHS does not agree with the proposition that an agency's 
decision to state new or revised reasons for its policy renders the 
agency's policy arbitrary and capricious. This rule is grounded in 
DHS's seven years of experience with the STEM OPT extension. In the 
2015 NPRM, DHS proposed that, independent of the labor market concerns 
that DHS expressed in the 2008 IFR, the STEM OPT extension offers 
significant educational benefits to students and educational 
institutions, as well as important economic and cultural benefits. It 
is not arbitrary or capricious for DHS to consider its experience with 
this program or to account for present-day realities when determining 
whether and how to retain and improve the program in a new rulemaking.
    The commenter further requested that DHS explain ``why its 
published policy rationale has changed'' since 2008. In short, the 
policy rationale and, importantly, the substance of the rules governing 
the program, have changed based on a range of factors. As discussed at 
length in the NPRM, these factors include the public comments received 
on the 2008 IFR and DHS's assessment of the benefits provided by the 
17-month STEM OPT extension. See, e.g., 80 FR 63379-63384. This 
assessment is informed by enduring national priorities, such as 
strengthening the U.S. educational system by helping to ensure that the 
nation's colleges and universities remain globally competitive in 
attracting international students in STEM fields and enhancing the 
United States' economic, scientific, and technological sectors. DHS 
believes that it has appropriately considered the evidence in 
determining whether and how to retain and improve the STEM OPT 
extension.
iii. Relationship Between Taxation Rules and the Authority of the 
Secretary of Homeland Security Regarding Employment of F-1 
Nonimmigrants
    Comment. DHS received a significant number of comments that 
discussed whether existing Federal tax law creates an incentive for 
employers to hire F-1 nonimmigrants for practical training, rather than 
U.S. workers, and whether DHS should make changes to Federal tax law 
before or as part of finalizing a rule allowing a STEM OPT extension 
with the OPT program. The tax law provision primarily at issue in these 
comments is 26 U.S.C. 3121(b)(19), which exempts certain services from 
Federal Insurance Contributions Act (FICA) taxation when they are 
performed by F-1 nonimmigrants (among other nonimmigrant 
classifications) who are nonresidents for Federal tax purposes.\67\ 
Many comments suggested that this exemption creates an incentive for 
employers to hire F-1 nonimmigrants instead of U.S. workers, and that 
this rule would therefore disadvantage U.S. workers. Other comments 
suggested that employers are not influenced by tax exemptions when 
making hiring decisions.
---------------------------------------------------------------------------

    \67\ See generally 26 CFR 31.3121(b)(19)-1.
---------------------------------------------------------------------------

    A number of commenters, for example, stated that employers save 
money by not incurring FICA payroll taxes when they hire F-1 
nonimmigrants instead of U.S. workers and that these savings induce 
employers to prefer F-1 nonimmigrants over U.S. workers. A few hundred 
comments labeled the Department's proposed rulemaking as ``corporate 
welfare.'' One commenter stated that it is ``unethical'' for F-1 
nonimmigrants to be exempt from ``paying taxes'' since those 
nonimmigrants who are working under H-1B visas are not exempt. One 
commenter suggested that the tax treatment of F-1 nonimmigrants has the 
effect of discouraging Americans from pursuing study in STEM fields.
    Another commenter stated that excusing OPT participants from 
payroll taxes was not the result of congressionally created tax policy 
but instead a decision by ``the administration'' to ``simply defin[e] 
recent alumni as foreign `students' '' and thus ``allow[] employers to 
avoid payroll taxes.'' One commenter criticized DHS because the 
Department ``offered nothing in the proposed rule to deal with the wage 
savings enjoyed by the employers of OPT workers from not having to pay 
FICA payroll taxes for OPT workers.'' This commenter stated that ``the 
Department clearly believes it has the authority to impose wage-related 
conditions on OPT employers, but it's unclear why the Department 
wouldn't also address the FICA issue which some suggest is one of the 
biggest sources of unfairness to U.S. workers competing with OPT 
workers.''
    Several comments that referenced tax issues cited analysis by a 
research organization stating that ``OPT removed $4 billion from the 
Social Security and Medicare trust funds'' over five years. Others 
cited the same analysis to state that the OPT program ``costs Social 
Security about $1 billion dollars a year'' or ``about $10,000 annually 
for each OPT'' participant.
    However, many other commenters who discussed taxation stated that

[[Page 13057]]

because individuals in F-1 nonimmigrant status are ineligible to 
collect Social Security or Medicare benefits and may never qualify in 
the future for such benefits, contributions to those programs should 
not be required for services rendered by F-1 nonimmigrants. Also, some 
commenters who identified as F-1 students stated that payroll taxes may 
be affected by tax treaties between the United States and other 
nations. A number of F-1 students noted that they pay city, state, and 
federal income taxes, as well as sales tax.
    A few commenters submitted ideas on how DHS could revise or address 
the payroll tax provisions. One commenter suggested that the 
Department's proposed regulation could be changed to remove any 
financial incentive to hire non-U.S. citizens by exempting employers 
``from FICA for two years when they hire a new grad STEM U.S. worker, 
and [charging] a 10% penalty for displacing an American STEM graduate 
when an OPT is hired.'' A labor union proposed that ``DHS should 
require employers of STEM workers to pay an amount equal to payroll 
taxes into a fund to encourage employment of U.S. STEM workers.'' A 
research organization proposed in the alternative that the amount of 
such payroll taxes could be paid to the U.S. Treasury.
    One commenter stated that ``Congress delegated authority to define 
periods of employment for F-1 nonimmigrants to the Treasury Department, 
not DHS.'' This commenter criticized the proposed rulemaking on the 
grounds that it ``never mentions or references the detailed applicable 
laws governing the FICA, Federal Unemployment Tax Act (FUTA), or Social 
Security withholding.'' The commenter also stated that ``the proposed 
agency policy authorizing graduates on F-1 visas to work full-time 
while exempt for FICA withholding directly conflicts with the Internal 
Revenue Code (IRC), the Social Security Act (SSA), and Supreme Court 
precedent.''
    Response. Matters related to Federal taxation are controlled by 
Congress through the IRC, and by the Department of the Treasury 
(Treasury) through regulations promulgated thereunder, not DHS. 
Although Congress may revise, eliminate, or create new obligations or 
conditions based on the payroll tax exemptions in the IRC for F-1 
nonimmigrants, DHS may not do so. Similarly, although Treasury may 
issue regulations interpreting and implementing federal tax laws, DHS 
may not. DHS is thus unable to amend the rule to accommodate reforms 
related to payroll taxation or to take other measures affecting federal 
tax policy or rules.
    Under current tax laws, when F-1 nonimmigrants are exempt from 
payroll taxes, the employer saves an amount equal to 6.2 percent of the 
F-1 nonimmigrant's salary up to the taxable wage base ($118,500 in 
2016) and an additional 1.45 percent of the total salary that, in the 
aggregate, would have been the employer contribution to the Social 
Security and Medicare trust funds. The F-1 nonimmigrant similarly saves 
a deduction from his or her salary in the same amount that would have 
been the employee contribution. The FICA chapter of the IRC, which 
governs the payroll tax owed by employers and employees to fund the 
Social Security and Medicare programs,\68\ provides that no payroll 
taxes are to be withheld for services performed by a nonresident alien 
who is an F-1 nonimmigrant \69\ as long as the services are ``performed 
to carry out a purpose for which the individual was admitted.'' \70\
---------------------------------------------------------------------------

    \68\ 26 U.S.C. 3101, et seq.
    \69\ 26 U.S.C. 3121(b)(19).
    \70\ 26 CFR 31.3121(b)(19)-1(a)(1).
---------------------------------------------------------------------------

    The IRC provides that aliens temporarily in the United States are 
resident aliens, rather than nonresident aliens, for Federal tax 
purposes, when they satisfy a substantial presence test based on 
physical presence in the United States.\71\ However, an individual 
temporarily present in the United States as an F-1 nonimmigrant who 
substantially complies with the requirements of the visa classification 
is an ``exempt individual'' \72\ who does not count days physically 
present in the United States as an F-1 nonimmigrant for five calendar 
years toward the substantial presence test.\73\ Thus, an F-1 
nonimmigrant who is an ``exempt individual'' (for any part of five 
calendar years) is not a resident alien for taxation under the IRC, and 
as a nonresident alien is not subject to payroll taxes for Social 
Security and Medicare contributions (for those five calendar years). 
Similarly, the FUTA chapter of the IRC, which governs payroll taxes for 
unemployment compensation,\74\ exempts from unemployment taxes those 
services performed by a nonresident alien who is an F-1 
nonimmigrant.\75\ In short, an individual who is an F-1 nonimmigrant 
generally is exempt from FICA and FUTA payroll taxes during the first 
five calendar years in which the individual holds F-1 nonimmigrant 
status.
---------------------------------------------------------------------------

    \71\ 26 U.S.C. 7701(b).
    \72\ 26 U.S.C. 7701(b)(5)(D)(i)(I).
    \73\ An individual present in the United States for any part of 
a calendar year as an F-1 nonimmigrant must count that year toward 
the five year cap on being considered an ``exempt individual.'' 26 
CFR 301.7701(b)-3(b)(4), (7)(iii).
    \74\ 26 U.S.C. 3301, et seq.
    \75\ 26 U.S.C. 3306(c)(19); see also 26 CFR 31.3306(c)(18)-
1(a)(1).
---------------------------------------------------------------------------

    These provisions, although of course relevant to F-1 students and 
employers for purposes of determining FICA and FUTA tax liability, 
neither displace, nor authorize Treasury to displace, the Secretary's 
broad authority to administer and enforce the nation's immigration 
laws. See, e.g., 6 U.S.C. 202; INA Sec. 103, 8 U.S.C. 1103. Whether 
with respect to F-1 students or any other category of nonimmigrants, 
the IRC does not dictate the terms and conditions relating to 
nonimmigrant status. As Treasury explains in its U.S. Tax Guide for 
Aliens (IRS Publication 519): ``[An alien is] considered to have 
substantially complied with the visa requirements if [he or she has] 
not engaged in activities that are prohibited by U.S. immigration laws 
and could result in the loss of [his or her] visa status.'' In sum, 
DHS, not Treasury, is charged with determining whether an individual is 
maintaining F-1 nonimmigrant status, and Treasury, not DHS, must 
determine when and how payroll tax obligations accrue and are 
calculated. See, e.g., id; INA Sec. 101(a)(15), 8 U.S.C. 1101(a)(15); 
INA Sec. 214, 8 U.S.C. 214.
    Accordingly, the assertion by a commenter that Treasury controls 
when F-1 nonimmigrants are authorized for employment is incorrect. This 
mistaken theory seems to be grounded in a misreading of select 
provisions of the IRC referenced by the comment concerning work 
performed as an employee of a school, college, or university. Such work 
is exempt from both FICA and FUTA under the IRC when Treasury 
determines that the worker is both taking classes at and working for a 
qualifying institution and should be considered an exempt student.\76\ 
Although Treasury has further defined these provisions 
administratively, neither the IRC nor Treasury's regulations relate to 
when F-1 nonimmigrants are authorized to work. Rather, they relate to 
when certain employed students (whether F-1 nonimmigrants or U.S. 
citizens) who are enrolled in and regularly attending classes are 
exempt from payroll taxes. In other words, these provisions do not 
limit when an F-1 nonimmigrant can work, but instead control whether 
FICA and FUTA taxes apply to services provided by certain individuals 
to

[[Page 13058]]

certain institutions.\77\ DHS thus rejects the suggestion that Treasury 
controls when F-1 nonimmigrants are authorized for employment.
---------------------------------------------------------------------------

    \76\ 26 U.S.C. 3121(b)(10) (FICA) and 3306(c)(10)(B) (FUTA); see 
also 26 CFR 31.3121(b)(10)-2 (FICA) and 31.3306(c)(10)-2 (FUTA).
    \77\ Among other workers, these provisions are inapplicable to 
medical students in their capacity as hospital residents. Mayo 
Found. For Med. Educ. & Research v. U.S., 562 U.S. 44 (2011). The 
Mayo case, cited by a commenter, is not controlling as to whether 
STEM OPT extensions are permitted for F-1 nonimmigrants. Although 
the Supreme Court concluded that the FICA and FUTA exemptions for 
students are not available to medical residents working at 
hospitals, id., that decision (and Treasury's position on the 
circumstances in which employed students working for the institution 
where they take classes are exempt from payroll taxes) does not 
address the availability of work authorization to F-1 nonimmigrants 
more broadly.
---------------------------------------------------------------------------

    Additionally, following consultation with Treasury, DHS has 
determined that it would be incorrect to conclude that the payroll tax 
exemption for F-1 nonimmigrants ``removes'' any monies from the Social 
Security or Medicare program trust funds, despite many comments to this 
effect. At most, the statutory tax exemption has the (intended) effect 
of not generating FICA and FUTA payroll tax revenue when certain F-1 
nonimmigrant students are employed.
    Moreover, the amount of revenue affected by these payroll tax 
exemptions does not approach the $4 billion over five years (i.e., just 
under $1 billion annually, or approximately $10,000 annually per STEM 
OPT participant) cited by certain commenters. Other commenters noted 
that the research organization that calculated these figures did not 
take into account that (1) employers incur other costs if they choose 
to hire an individual who is an F-1 nonimmigrant, and (2) many F-1 
nonimmigrants are not tax exempt.
    With respect to the first point, some commenters noted that any 
employer savings related to tax laws are at least in part offset by 
administrative costs, legal fees, and staff time related to securing 
the authority under U.S. immigration law to employ the foreign-born 
worker.\78\ With respect to the second point, other commenters 
emphasized that not all F-1 nonimmigrants are exempt from payroll taxes 
under these specific FICA and FUTA rules. Instead, some may be exempt 
because of tax treaty provisions, while many others, including F-1 
nonimmigrants eligible for STEM OPT extensions, may not be exempt 
because they have already been in the United States for parts of five 
calendar years. In regards to the tax treaty provisions, it should be 
noted that U.S. citizens would receive tax treatment while working 
abroad that is commensurate with the treatment received by nationals of 
our treaty partners while they work in the United States. In addition, 
it is not clear to DHS that compliant employers would typically 
perceive an incentive to hire F-1 nonimmigrants due to a payroll tax 
exemption, as it is not clear how employers would definitively know a 
particular nonimmigrant's tax treatment prior to hiring.\79\ Based on 
these factors, other provisions in this rule that safeguard the 
interests in U.S. workers, and DHS's long experience administering and 
enforcing the nation's immigration laws, DHS concludes that commenters' 
concerns about the incentives created by the statutory tax exemptions 
are overstated.
---------------------------------------------------------------------------

    \78\ Below, DHS estimates some of the direct costs that this 
rule imposes upon employers of F-1 nonimmigrant students on STEM OPT 
extensions. In addition to this rule's direct costs, the incentive 
cited by the commenters is offset by the fact that STEM OPT students 
are in the United States temporarily, and are therefore, to many 
employers, inherently less valuable than U.S. workers. For instance, 
a commenter noted that there are significant costs and uncertainty 
associated with retaining an F-1 nonimmigrant beyond the STEM OPT 
extension period.
    \79\ Employers, for example, may not know whether an individual 
is in F-1 nonimmigrant status or whether he or she has been in such 
status in the United States for less than five years. DHS notes that 
employers do not necessarily have access during the recruitment 
process to specific documentation confirming such information. And 
DOJ cautions against requesting such information as it may cause the 
perception of discriminatory conduct. See Office of Special Counsel, 
Technical Assistance Letter on Pre-employment Inquiries Related to 
Immigration Status, at http://www.justice.gov/sites/default/files/crt/legacy/2013/09/11/171.pdf.
---------------------------------------------------------------------------

    DHS also observes that there are a number of other deficiencies in 
the figures suggested for the fiscal impact of the payroll tax 
exemptions for F-1 nonimmigrants. For instance, the figures assume 
incorrectly that every F-1 nonimmigrant on a STEM OPT extension has 
displaced a U.S. worker who would otherwise be subject to payroll 
taxes, and that every STEM OPT student ultimately draws down on the 
funds generated by payroll taxes. The figures also appear to be based 
on calculations related to the total number of students engaged in OPT, 
not just those on STEM OPT extensions. In addition to the reasons 
discussed above, DHS declines to make changes to a successful 
international student program based on speculative assertions about the 
impact of certain statutory tax exemptions on the programs funded by 
the FICA and FUTA taxes. Furthermore, if those tax exemptions are in 
fact problematic, they must be addressed by Congress.
iv. Legal Authority
    Comment. DHS received many comments concerning the legal authority 
underpinning the OPT program. Some commenters challenged the 
Department's authority to maintain an OPT program at all, in part 
because there is no express statutory authority establishing such a 
program. A commenter with this view cited a 1977 regulation from the 
legacy Immigration and Naturalization Service (INS) in which the INS 
had stated that there was no express authority in the INA establishing 
OPT employment for F-1 students. Other commenters objected to the STEM 
OPT extension on the grounds that it is inconsistent with other 
provisions of the INA regulating visa classifications that expressly 
provide employment authorization. These commenters took the position 
that the only permissible objective of an F-1 student's course of study 
is to obtain a degree. According to those commenters, once that 
objective has been achieved, the purpose of the F-1 status has been 
fulfilled and the student's status should terminate. Other commenters 
contested the Department's authority to provide STEM OPT extensions 
because such extensions were inconsistent with one of the ``INA's 
primary purpose[s],'' which they characterized as restricting 
immigration ``to preserve jobs for [U.S.] workers.''
    One commenter specifically argued that the statutory authority for 
OPT was undermined by certain congressional action in 1990 to create an 
OPT-related pilot program, followed by the failure in 1994 to extend 
that program:

    The only clear statutory authority that has ever existed for an 
OPT-like program was a three-year pilot program created by section 
221 of the 1990 Immigration and Nationality Act [sic] that allowed 
foreign graduates to work in fields unrelated to their degree. . . . 
However Congress did not allow the program to exist for more than a 
few years after its creation, in part because an INS and DOL 
evaluation found that it ``may have adverse consequences for some 
U.S. workers.''

    The implication is that because Congress had authorized that 
specific OPT program by statute and then allowed it to expire, other 
forms of OPT that are not specifically authorized in statute are not 
legally justifiable.
    Other commenters, however, submitted comments recognizing the legal 
justifications for the OPT program. A number of commenters, for 
example, recounted the history of post-completion OPT in support of the 
proposed rule. Those commenters noted that OPT employment had been 
provided by INS and DHS since at least 1947, and they concluded that 
DHS was on sound legal footing in including a STEM OPT extension within 
the OPT program. Some commenters stated that

[[Page 13059]]

DHS was utilizing broad authority granted by Congress to enforce and 
administer the immigration laws. Those commenters generally considered 
persuasive the fact that Congress had amended the INA numerous times in 
ways that indicated its knowledge of, and acquiescence to, the 
existence of a significant period of post-graduation OPT.
    One commenter that recognized the Department's legal authority in 
issuing this rule addressed the significance of Congress' actions in 
1990 to create a pilot program in which F-1 students could receive 
employment authorization for practical training unrelated to the their 
fields of study. Although Congress later allowed the pilot program to 
expire in 1994, the commenter explained that the program's creation 
supported the Department's authority to permit OPT employment related 
to students' fields of study:

    In the Immigration Act of 1990, Congress authorized the creation 
of a pilot program which allowed F-1 student employment in positions 
that were unrelated to the alien's field of study. The creation of 
this program bolsters the argument that DHS's interpretation is 
reasonable. . . . The logical conclusion to draw here is that 
Congress only acted explicitly to authorize F-1 students to receive 
post-completion training in fields unrelated to their studies 
because the law already allowed post-completion training in fields 
related to the student's studies.

    This commenter, along with many others, expressed support for the 
proposed rule as a reasonable construction of the authorities provided 
to the Department by the immigration laws.
    Response. The Homeland Security Act and the INA provide DHS with 
broad authority to administer the INA and regulate conditions for 
admission under nonimmigrant categories, including the F-1 student 
classification. See, e.g., 6 U.S.C. 202; 8 U.S.C. 1103(a)(1) and (3); 8 
U.S.C. 1184(a)(1). As the U.S. District Court for the District of 
Columbia recently observed:

    Congress has delegated substantial authority to DHS to issue 
immigration regulations. This delegation includes broad powers to 
enforce the INA and a narrower directive to issue rules governing 
nonimmigrants. See 8 U.S.C. 1103(a)(1) . . .; id. Sec.  1103(a)(3) 
(``The Secretary of Homeland Security shall establish such 
regulations [inter alia,] as he deems necessary for carrying out his 
authority under the provisions of the INA.''); id. Sec.  1184(a)(1) 
(``The admission to the United States of any alien as a nonimmigrant 
shall be for such time and under such conditions as the [Secretary] 
may by regulations prescribe. . . .'').

Washington Alliance, No. 1:14-cv-00529, slip op. at 18-19. In addition 
to explicitly authorizing the Secretary to admit international students 
to the United States temporarily to pursue a course of study, see 8 
U.S.C. 1101(a)(15)(F)(i), the INA endows the Secretary with broad 
discretion to promulgate regulations establishing the time and 
conditions under which such aliens may be admitted, see 8 U.S.C. 
1103(a)(3), 1184(a)(1), 8 U.S.C. 1101(a)(15)(F)(i), 1103(a) and 
1184(a)(1). The Secretary also has broad authority to determine which 
individuals are ``authorized'' for employment in the United States. See 
8 U.S.C. 1324a, 8 CFR part 274a.
    To the extent that comments challenging DHS's legal authority 
concerned the OPT program generally, such comments are outside the 
scope of this rulemaking, which relates specifically to the 
availability of STEM OPT extensions. DHS did not propose to modify the 
general post-completion OPT program in the proposed rule. Moreover, to 
the extent that such comments can be construed as challenging DHS's 
authority to implement a STEM OPT extension in particular, DHS finds 
the comments unpersuasive.
    Federal agencies charged with administration of the immigration 
laws have long interpreted the statutory authorities cited above to 
encompass on-the-job training that supplements classroom training for 
international students. See Washington Alliance, No. 1:14-cv-00529, 
slip op. at 24; Programmers Guild, Inc. v. Chertoff, 338 F. App'x 239, 
244 (3d Cir. 2009) (unpublished). For example, in 1947, legacy INS 
promulgated a rule authorizing international students to work after 
graduation based upon statutory authority that is similar in relevant 
respects to current statutory authority governing the admission of 
international students. The 1947 rule provided that ``in cases where 
employment for practical training is required or recommended by the 
school, the district director may permit the student to engage in such 
employment for a six-month period subject to extension for not over two 
additional six-month periods.'' See 12 FR 5355, 5357 (Aug. 7, 1947). 
Again in 1973, legacy INS promulgated regulations authorizing, pursuant 
to the INA, employment for international students for practical 
training under certain conditions. See 38 FR 35425, 35426 (Dec. 28, 
1973). For decades, INS and DHS regulations have defined an 
international student's duration of status, in pertinent part, as ``the 
period during which the student is pursuing a full course of study in 
one educational program . . . and any period or periods of authorized 
practical training, plus [a grace period] following completion of the 
course of study or authorized practical training within which to depart 
from the United States.'' 48 FR 14575, 14583-14584 (Apr. 5, 1983) 
(emphases added). See also 8 CFR 214.2(f)(5)(i).
    Moreover, during this period, Congress has had occasion to amend 
the INA in general, and F-1 nonimmigrant provisions in particular, on 
numerous occasions. Despite these numerous amendments, Congress has 
left completely undisturbed the longstanding interpretation that 
international students are authorized to work in practical training. 
See e.g., Pub. L. 87-256, Sec.  109(a), 75 Stat. 527, 534 (Sept. 21, 
1961) (allowing an F-1 nonimmigrant's alien spouse and minor children 
to accompany the F-1 nonimmigrant to the United States); Immigration 
Act of 1990 Sec.  221(a) (permitting F-1 nonimmigrants to engage in 
limited employment unrelated to their field of study); Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 
104-208, Sec.  625, 110 Stat. 3009-546, 3009-699 (adding limitations 
related to F-1 nonimmigrants at public schools); Enhanced Border 
Security and Visa Entry Reform Act of 2002, Pub. L. 107-173, Sec. Sec.  
501-502, 116 Stat. 543, 560-63 (implementing monitoring requirements 
for international students); Pub. L. 111-306, Sec.  1, 124 Stat. 3280, 
3280 (Dec. 14, 2010) (amending F-1 with respect to language training 
programs). ``[W]hen Congress revisits a statute giving rise to a 
longstanding administrative interpretation without pertinent change, 
the congressional failure to revise or repeal the agency's 
interpretation is persuasive evidence that the interpretation is the 
one intended by Congress.'' Commodities Futures Trading Comm'n v. 
Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 
416 U.S. 267, 275 (1974)).
    In light of the long regulatory history for the OPT program, 
including the Department's longstanding interpretation of the INA and 
the longstanding congressional recognition of that interpretation, DHS 
is confident that this rulemaking is consistent with statutory 
authority. As explained by the recent decision in the Washington 
Alliance litigation:

    DHS's interpretation of F-1--inasmuch as it permits employment 
for training purposes without requiring ongoing school enrollment--
is ``longstanding'' and entitled

[[Page 13060]]

to deference. See Barnhart [v. Walton], 535 U.S. [212,] 220 
[(2002)]. Second, Congress has repeatedly and substantially amended 
the relevant statutes without disturbing this interpretation. These 
amendments have not been ``isolated.'' Public Citizen [v. U.S. Dep't 
of Health and Human Services], 332 F.3d [654,] 668 [(D.C. Cir. 
2003)]. The Immigration and Nationality Act of 1952, in particular, 
radically changed the country's immigration system. And, the 
Immigration Act of 1990 imposed a host of new protections for 
domestic workers and explicitly authorized F-1 students to engage in 
certain forms of employment. By leaving the agency's interpretation 
of F-1 undisturbed for almost 70 years, notwithstanding these 
significant overhauls, Congress has strongly signaled that it finds 
DHS's interpretation to be reasonable.

    Washington Alliance, No. 1:14-cv-00529, slip op. at 26-27.
    With respect to one commenter's reliance on the 1977 INS 
rulemaking, DHS recognizes that legacy INS previously noted the lack of 
specific statutory provisions expressly authorizing OPT. DHS agrees 
that the INA contains no direct and explicit provision creating a post-
completion training program for F-1 students. But this does not mean 
that the Department lacks the authority to implement such a program. 
Indeed, as the 1977 Rule recognized, ``section 103 of the Immigration 
and Nationality Act (8 U.S.C. 1103) . . . provides the Attorney General 
and the Commissioner of the Immigration and Naturalization Service 
certain powers and duties, including the establishment of 
regulations.'' 42 FR at 26411. And it was pursuant to that authority 
that in the very 1977 rulemaking in which the INS made the statement 
cited by the commenter, the INS amended the regulations that authorized 
``a nonimmigrant alien student to engage in practical training'' and 
continued to authorize OPT. Id. As noted above, Congress's actions over 
several decades make clear that Congress understood the F-1 statutory 
provisions to permit ``at least some period of employment'' and that 
``the clause in F-1--`solely for the purpose of pursuing such a course 
of study'--does not foreclose employment.'' Washington Alliance, No. 
1:14-cv-00529, slip op. at 21.
    Further, the fact that Congress has recognized and approved of OPT 
is further supported, rather than undermined, by its creation of an 
OPT-related pilot program in 1990. First, the legislative history 
indicates that Congress understood the new pilot program, which 
authorized temporary employment unrelated to a student's field of 
study, as an expansion of off-campus employment authorization for F-1 
nonimmigrants. See H.R. Rep. No. 101-723, pt. 1, 1990 WL 200418, *6746 
(recognizing that the legislation ``expands the current authority of 
students to work off-campus''). Second, as recognized by other 
commenters, the fact that Congress chose to create a pilot program 
specifically authorizing employment unrelated to a student's field of 
study is itself proof that Congress understood that employment related 
to such a field of study already had been appropriately authorized by 
the INS. The fact that Congress, acting against the backdrop of the 
longstanding OPT program, sought to expand students' employment 
opportunities, without curtailing the existing OPT program, indicates 
that Congress did not perceive OPT to be in contravention of Department 
authority. Indeed, the fact that Congress understood that F-1 
nonimmigrants were regularly employed is reflected in the fact that, as 
early as 1961, Congress acted to exempt such students from certain 
payroll taxes. If F-1 nonimmigrants could not be employed, there would 
be no reason for Congress to recognize in the tax code that employment 
could be related to the purpose specified in 8 U.S.C. 1101(a)(15)(F) or 
to exempt such employment from payroll taxes.\80\
---------------------------------------------------------------------------

    \80\ Congress added 26 U.S.C. secs. 3121(b)(19) and 3306(c)(19) 
to the Internal Revenue Code in 1961. See P.L. 87-256, Sections 
110(b), 110(f)(3) (1961). These provisions exempt from payroll taxes 
certain F-1 nonimmigrants who have not been present in the United 
States in F-1 status for parts of five calendar years, as discussed 
supra in part IV.A.3 of this preamble.
---------------------------------------------------------------------------

    Finally, DHS disagrees with the suggestion that the rule's 
objectives conflict with one of the ``INA's primary purpose[s]'' of 
restricting immigration ``to preserve jobs for [U.S.] workers.'' The 
final rule, as with the proposed rule, contains important safeguards 
specifically designed to guard against such effects, while also 
furthering crucial benefits stemming from academic and cultural 
exchange, innovation, and economic growth. Accordingly, this rule 
maintains the U.S. Government's longstanding legal and policy positions 
on this matter; practical training is an important and recognized 
element of a student's educational experience and full course of study.
    Comment. A number of commenters took issue with the duration of 
STEM OPT extensions as proposed in the 2015 NPRM, asserting that a two-
year extension was contrary to DHS's statutory authority. A commenter 
stated that authorizing post-completion employment for an ``extended 
period of time'' is unlawful and quoted the above-referenced 1977 final 
rule, in which legacy INS reduced the maximum OPT period from 18 months 
to one year. See 42 FR 26411 (May 24, 1977). The commenter asserted 
that legacy INS issued the 1977 rule based on a finding that an 
extended duration of OPT could cause injury to U.S. workers because OPT 
students could work for less than prevailing wages during their 
training period. The commenter asked whether DHS had considered this 
1977 INS finding when developing the present rulemaking, and whether 
DHS ``now rejects the earlier finding of the INS'' that ``[t]here is no 
indication that the Congress intended that [a foreign student] remain 
and work in the U.S. for an extended period after completion of his 
course of study and until he becomes fully experienced in his 
occupational skill.'' 42 FR at 26412.
    Response. DHS acknowledges that approximately 40 years ago, legacy 
INS limited the maximum overall period of practical training for all 
degree programs from 18 months to 12 months. The INS, however, made 
this change for policy reasons and not legal reasons. At no point did 
the INS conclude that statutory authority required it to reduce the 18-
month maximum period for OPT. Moreover, INS apparently made the 
statement about legislative intent in the course of rejecting a request 
to provide an across-the-board maximum of two years for practical 
training in all fields of study. This statement did not define the 
scope of INS' legal authority. And as part of this rule, DHS neither 
considered nor proposed an across-the-board increase in the duration of 
OPT for all students, but instead only proposed the extension for on-
the-job training in STEM fields.
    With respect to policy, DHS also acknowledges that legacy INS 
recognized in the same 1977 rulemaking that ``[i]t may be that foreign 
students will be less likely to find employment, and perhaps fewer 
aliens would enter the U.S. to obtain their education here.'' See 42 FR 
at 26412. DHS, however, does not believe that it should be constrained 
to the factual and policy determinations that legacy INS made 
approximately 40 years ago with respect to the effect of the overall 
OPT program on the 1977 U.S. labor market. The world has changed a 
great deal since that time, and DHS believes it appropriate to shape 
policy accordingly.
    As noted previously, the enhancements made by this rule are 
supported by data generally suggesting that international students 
contribute to the overall U.S. economy by building global connections 
between their hometowns and U.S. host cities.

[[Page 13061]]

Evidence links skilled migration to transnational business creation, 
trade, and direct investment between the United States and a migrant's 
country of origin. International STEM students also contribute more 
specifically to a number of advanced and innovative fields that are 
critical to national prosperity and security. By conducting scientific 
research, developing new technologies, advancing existing technologies, 
and creating new products and industries, for example, STEM workers 
diversify the economy and drive economic growth, while also producing 
increased employment opportunities and higher wages for U.S. workers. 
The rule also reflects DHS's consideration of potential impacts on the 
U.S. labor market and includes important safeguards for U.S. workers in 
STEM fields.
    Comment. Some commenters made arguments based on comparisons 
between the STEM OPT program and the H-1B program, suggesting that DHS 
should infer from the H-1B category implicit limits on DHS's legal 
authority to allow F-1 students to engage in practical training as part 
of completing their full course of study. Some commenters asserted that 
DHS had no legal authority for a STEM OPT extension because it 
``circumvents'' the statutory requirements of the H-1B visa 
classification. Relatedly, one commenter suggested that granting 
employment authorization through the OPT program permits F-1 students 
to sidestep restrictions on employment of foreign nationals enacted by 
Congress through establishment of a limited number of employment-
authorized visa categories. In support of this contention, the 
commenter cited the decision by the U.S. District Court for the 
Northern District of California in Int'l Union of Bricklayers & Allied 
Craftsman v. Meese, 616 F. Supp. 1387 (N.D. Cal. 1985).
    Response. DHS disagrees that the STEM OPT extension is an attempt 
to circumvent the requirements of the H-1B visa program, including the 
cap on H-1B visas. The H-1B nonimmigrant classification is a unique 
program designed to meet different policy objectives than those of the 
F-1 visa program or OPT. While this rule enhances the ability of F-1 
students in STEM fields to implement and test educational concepts 
learned in the classroom in the context of on-the-job training, the 
rule does nothing to modify the congressionally established annual H-1B 
visa cap nor to modify the longstanding policy objectives of the H-1B 
program that generally allow U.S. employers to temporarily fill job 
openings in specialty occupations by employing workers who possess at 
least a bachelor's degree. Unlike the H-1B visa program where an 
employer must petition for an H-1B visa for a foreign worker to fill a 
job opening, in the F-1 visa program, it is F-1 students, including 
those affected by this final rule, who seek to participate in OPT in 
order to further their education attained through course work in the 
United States. Unlike an H-1B specialty occupation worker, a student 
will participate in STEM OPT as a way to complement his or her academic 
experience in the United States pursuant to an individualized Training 
Plan that helps ensure that the STEM OPT experience furthers the 
student's course of study.
    DHS thus agrees with the U.S. District Court for the District of 
Columbia, which explained the relationship between the F-1 and H-1B 
visa classifications in its recent decision in Washington Alliance. In 
that decision, in which the court upheld the Department's legal 
authority to include a STEM OPT extension within the general OPT 
program, the court stated:

    F-1 and H-1B perform the interlocking task of recruiting 
students to pursue a course of study in the United States and 
retaining at least a portion of those individuals to work in the 
American economy. . . . But H-1B--which applies to aliens seeking to 
work in a ``specialty occupation''--is far broader than the 
employment permitted by the OPT program. DHS's interpretation of the 
word ``student'' does not render any portion of H-1B, or its related 
restrictions, surplusage. Congress has tolerated practical training 
of alien students for almost 70 years, and it did nothing to prevent 
a potential overlap between F-1 and H-1B when it created the modern 
H-1B category in 1990. As such, the Court does not believe that 
DHS's interpretation is unreasonable merely because of its limited 
overlap with H-1B.

    Washington Alliance, No. 1:14-cv-00529, slip op. at 14, 28 
(internal citations omitted).
    As for a commenter's reference to the Int'l Union of Bricklayers 
case, DHS finds that decision of little relevance to this rulemaking. 
In the cited case, the district court's holding was grounded in its 
finding that the admission of certain individuals as B-1 nonimmigrant 
visitors for particular construction work purposes was inconsistent 
with section 101(a)(15)(B) of the INA, 8 U.S.C. 1101(a)(15)(B), which 
expressly precludes admission in B nonimmigrant status of an alien 
``coming for the purpose . . . of performing skilled or unskilled 
labor.'' This case has no clear application to the STEM OPT extension, 
where there is no express statutory bar similar to section 
101(a)(15)(B) of the INA, 8 U.S.C. 1101(a)(15)(B).\81\ More critically, 
the overlap between the STEM OPT extension and the H-1B visa program 
does not invalidate DHS's interpretation of the controlling statutory 
authorities. For that reason, the court in Washington Alliance rejected 
arguments similar to those made by commenters that DHS had 
``circumvented the statutory restrictions that rightfully should be 
applied'' to college-educated labor.\82\
---------------------------------------------------------------------------

    \81\ Similarly, one commenter cited Texas v. United States, 787 
F.3d 733, 760-61 (5th Cir. 2015) as authority for the commenter's 
disagreement with DHS's statement of authority in the NPRM for the 
STEM OPT extension. That case is also inapposite here, as it did not 
address the Secretary's authority to grant work authorization for 
purposes of practical training.
    \82\ Washington Alliance, No. 1:14-cv-00529, slip op. at 28.
---------------------------------------------------------------------------

    Comment. A number of commenters similarly asserted that the 
proposed Cap-Gap provision, which further extends F-1 status for 
students who are beneficiaries of H-1B petitions, undermined the 
authority for this rulemaking. One commenter, for example, wrote that 
there is a fundamental conflict between the purpose of the student visa 
program and STEM OPT extensions in that student visas are not to be 
used as a means of immigrating to the United States. The commenter 
cited to comments from individuals who supported the proposed rule, 
including the Cap-Gap provision, as evidence that the rule would 
facilitate longer-term immigration to the United States. The commenter 
expressed that the rule would transform the statutory basis for the 
admission of foreign students--admission ``solely for the purpose of 
pursuing . . . a course of study''--into admission ``for pursuing a 
course of study or hanging around long enough to get an H-1B visa.'' 
The commenter stated that the Cap-Gap provision serves no purpose other 
than to assist F-1 students to remain in United States in violation of 
the terms of their admission.
    Response. DHS does not agree with the commenter's views related to 
the Cap-Gap provision. First, both the STEM OPT extension and the Cap-
Gap extension are of limited duration, and neither provides anything 
other than short-term temporary status. Second, as discussed above, 
practical training for international students has been authorized for 
many decades, and Congress has long recognized the Department's 
interpretation of the student visa and related sections of the INA. 
Congress also created the H-1B nonimmigrant classification specifically

[[Page 13062]]

for specialty occupation workers with bachelors' degrees or higher. See 
INA Sec. 101(a)(15)(H)(i)(B) and 214(i)(l), 8 U.S.C. 
1101(a)(15)(H)(i)(B) and 1184(i)(1). As noted in the recent Washington 
Alliance decision, the fact that F-1 students on OPT share certain 
similarities with H-1B nonimmigrant workers does not render the OPT 
program invalid. See Washington Alliance, No. 1:14-cv-00529, slip op. 
at 14, 28. Third, Congress also created provisions expressly allowing 
individuals with one nonimmigrant classification to change status to a 
different nonimmigrant classification. See INA Sec. 248, 8 U.S.C. 1258. 
There is thus nothing problematic about the fact that F-1 students in a 
period of OPT may seek to remain in the United States in H-1B 
nonimmigrant status. The immigration laws are specifically designed to 
facilitate such shifts. See id. And, as noted earlier, nothing about 
the Cap-Gap provision affects eligibility for H-1B status or visas, 
changes the number of such visas, or otherwise increases the ability of 
students to obtain classification as an H-1B nonimmigrant.
    To the contrary, the Cap-Gap provision simply provides a temporary 
bridge between two lawfully available periods of nonimmigrant status. 
As noted above, the problem rectified by the Cap-Gap provision is the 
result of the misalignment between the academic year and the fiscal 
year. Because of this misalignment, F-1 students who were the 
beneficiaries of H-1B petitions often saw their F-1 status expire 
before they could effect the change to H-1B status, which required them 
to leave the United States and subsequently reenter on an H-1B visa. 
The Cap-Gap provision would simply remove the need to depart and 
subsequently reenter by extending the student's F-1 status for a 
limited number of months until his or her H-1B status commenced. The 
Cap-Gap provision is thus nothing more than a common-sense 
administrative measure that helps these students maintain legal status 
and avoids inconvenience to them and their employers. It is also fully 
consistent with existing legal authorities and the underlying purpose 
of the practical training program.

B. Enforcement, Monitoring, and Oversight

1. Description of Final Rule and Changes From NPRM
    The final rule includes a number of requirements related to 
enforcement and oversight of the STEM OPT extension program. To better 
ensure its integrity, this rule prohibits STEM OPT extensions based on 
degrees from unaccredited institutions; provides for DHS site visits at 
STEM OPT employment sites; sets an overall limit for the amount of time 
a student may be unemployed during a STEM OPT extension; requires 
validation reports from students, as well as reporting from both 
students and employers, on the student's employment status; requires 
students to provide annual evaluation reports; and requires both 
students and employers to report material changes to training plans. 
The proposed rule included these provisions; DHS has retained the 
provisions in the final rule, with changes and clarifications in 
response to public comments. We summarize these provisions and changes 
below.
i. University Accreditation
    To qualify for a STEM OPT extension, a student's STEM degree must 
be received from a U.S. educational institution accredited by an 
accrediting agency recognized by the Department of Education.\83\ As 
noted in the proposed rule, the goal of accreditation is to ensure the 
quality of educational institutions and programs. Specifically, the 
accreditation process involves the periodic review of institutions and 
programs to determine whether they meet established standards in the 
profession and are achieving their stated educational objectives.\84\
---------------------------------------------------------------------------

    \83\ An accrediting agency is a private educational association 
of regional or national scope that develops evaluation criteria and 
conducts peer evaluations of educational institutions and academic 
programs. U.S. Department of Education Office of Postsecondary 
Education, ``The Database of Accredited Postsecondary Schools and 
Programs,'' available at http://ope.ed.gov/accreditation.
    \84\ U.S. Department of Education Office of Postsecondary 
Accreditation, ``FAQs about Accreditation,'' available at http://ope.ed.gov/accreditation/FAQAccr.aspx.
---------------------------------------------------------------------------

    DHS retains the accreditation requirements from the proposed rule, 
with only one change in response to public comments received. In cases 
where a student uses a previously obtained STEM degree to apply for the 
STEM OPT extension, the institution from which the qualifying degree 
was obtained must be accredited by an accrediting agency recognized by 
the Department of Education at the time of the student's application 
for the STEM OPT extension. This is a change from the proposed rule's 
requirement that the institution be accredited at the time the degree 
was conferred. This change will make the provision easier to administer 
by eliminating the need for DSOs to verify the historical accreditation 
status of other institutions.
ii. Site Visits
    DHS may, at its discretion, conduct site visits to ensure that 
employers and students meet program requirements, including that they 
are complying with assurances and that they possess the ability and 
resources to provide structured and guided work-based learning 
experiences in accordance with individualized Training Plans. The 
combination of requiring school accreditation and conducting 
discretionary DHS site visits of employers will reduce the potential 
for fraudulent use of F-1 student status during the period of STEM OPT 
training.
    DHS retains the site visit provisions from the proposed rule, with 
one change to accommodate concerns about the potential disruption 
associated with unannounced site visits. DHS is including in this rule 
a requirement that DHS will provide notice to the employer 48 hours in 
advance of any site visit, unless the visit is triggered by a complaint 
or other evidence of noncompliance with the STEM OPT extension 
regulations, in which case DHS reserves the right to conduct a site 
visit without notice.
iii. Unemployment Limits
    Under this rule, a student may be unemployed for no more than 90 
days during his or her initial period of post-completion OPT, and for 
no more than a total of 150 days for students whose OPT includes a 24-
month STEM OPT extension. This provision is finalized as proposed, with 
minor changes for clarity.\85\
---------------------------------------------------------------------------

    \85\ The 90-day aggregate period during initial post-completion 
OPT was proposed to remain at the level proposed in the 2008 IFR. 
DHS proposed to revise the aggregate maximum allowed period of 
unemployment to 150 days for an F-1 student having an approved STEM 
OPT extension consistent with the lengthened 24-month period for 
such an extension.
---------------------------------------------------------------------------

iv. Employment Status and Validation Reporting
    Under this rule, the employer must report to the relevant DSO when 
an F-1 student on a STEM OPT extension terminates or otherwise leaves 
his or her employment before the end of the authorized period of OPT 
and must do so no later than five business days after the student 
leaves employment. Employers must report this information to the DSO. 
The contact information for the DSO is on the student's Form I-20, 
Certificate of Eligibility for Nonimmigrant (F-1) Student Status 
(``Form I-20 Certificate of Eligibility''), and on the student's Form 
I-983, Training Plan for STEM OPT Students.

[[Page 13063]]

DHS will extend OPT only for STEM students employed by employers that 
agree in the Training Plan to report this information. This requirement 
is identical to that in the proposed rule, except that in response to 
public comments, DHS determined to extend the report period from 48 
hours to five business days. As noted below, DHS believes that this 
timeframe is more realistic and more likely to result in consistent 
efforts to comply.
    The rule also enhances the ability to track F-1 students by 
requiring validation reporting every six months for such students on 
STEM OPT extensions. This additional requirement is important in 
fulfilling the goals of the STEM OPT extension and in timely and 
accurately tracking students, who are often away from their school's 
campus. Specifically, this rule requires students who are granted STEM 
OPT extensions to report to their DSOs every six months. As part of 
such reporting, students must confirm the validity of their SEVIS 
information, including legal name, address, employer name and address, 
and the status of current employment. This provision is largely 
finalized as proposed, but with some minor edits for clarity. The text 
has been reorganized to clearly state the types of events that require 
a validation report and to clearly state that the requirement to submit 
such reports starts on the date the STEM OPT extension begins and ends 
when the student's F-1 status expires or the 24-month OPT extension 
concludes, whichever occurs first.
v. Periodic Student Evaluations
    As compared to the proposed rule, and in response to public 
comments received, the final rule makes a number of changes and 
clarifications to the student evaluation requirement. First, DHS has 
changed the frequency of the evaluation requirement. DHS proposed 
requiring an evaluation every six months, but is reducing the frequency 
to every 12 months. This change is intended to better reflect employer 
practices where annual reviews are standard, allowing students and 
employers to better align the evaluations required under this rule with 
current evaluation cycles. Second, DHS is providing additional 
flexibility for employer participation in the evaluation process. 
Although the NPRM would have required the student's immediate 
supervisor to sign the evaluation, the final rule allows any 
appropriate individual in the employer's organization with signatory 
authority to sign the evaluations that the student will submit to the 
DSO. Third, DHS clarifies that this evaluation is not meant to replace 
or duplicate an employer's general performance appraisal process. 
Instead, the student evaluation is intended to confirm that the student 
is making progress toward his or her training objectives. These 
evaluations will help document the student's progress toward the 
agreed-upon training goals and thus better ensure that such goals are 
being met.
vi. Reporting of Material Changes to or Deviations From the Training 
Plan
    This final rule also provides that if there are material 
modifications to or deviations from the Training Plan during the STEM 
OPT extension period, the student and employer must sign a modified 
Training Plan reflecting the material changes, and the student must 
file this modified Training Plan with the DSO at the earliest available 
opportunity. Material changes relating to training for the purposes of 
the STEM OPT extension include, but are not limited to, any change of 
Employer Identification Number (EIN) resulting from a corporate 
restructuring; \86\ any reduction in compensation from the amount 
previously submitted on the Training Plan that is not the result of a 
reduction in hours worked; and any significant decrease in the hours 
per week that a student will engage in the STEM training opportunity, 
including a decrease below the 20-hour minimum employment level per 
week that would violate the requirements of the STEM OPT extension.
---------------------------------------------------------------------------

    \86\ Changes of employers or EINs that are not simply a 
consequence of a corporate restructuring require filing of a new, 
rather than a modified, Training Plan by the new employer. See 8 CFR 
214.2(f)(10)(ii)(C)(7)(iv).
---------------------------------------------------------------------------

    This aspect of the final rule represents a clarification of a 
proposed provision in the NPRM. Commenters on the proposed rule 
requested additional clarity with respect to what types of changes to 
or deviations from the training plan would be considered ``material'' 
and would therefore require the submission of a modified plan to the 
DSO. As discussed in further detail below, DHS is departing from the 
proposal in response to public comments.
    DHS further notes that ICE is working toward technology that would 
allow students to update their basic information in SEVIS without 
gaining access to restricted areas of the system where student access 
would be inappropriate. Once ICE implements this technology, students 
will have an increased ability to maintain their own records. This 
would also decrease the workload on DSOs, who would no longer be 
required to update student information while students are participating 
in OPT.
2. Public Comments and Responses
i. University Accreditation
    Comment. A number of commenters suggested additional restrictions 
on the types of educational institutions that should be allowed to 
participate in the STEM OPT extension program. Several commenters 
asserted, for example, that STEM OPT extensions should be limited only 
to students from the ``top 50-100'' universities in the United States. 
One commenter proposed that ``academic programs that have been fined, 
reached a settlement, or are under investigation by federal or state 
law enforcement agencies should be barred from accessing OPT visas, as 
should any institutions that are subject to heightened cash 
monitoring.''
    Other commenters recommended further restrictions. Some commenters 
suggested that accreditation alone was insufficient to ensure the 
quality of degree programs and that additional quality standards should 
be adopted for STEM OPT extensions. Other commenters stated that 
students should be ineligible for STEM OPT extensions based on STEM 
degrees earned at for-profit institutions. One commenter stated that 
for-profit institutions had been abusing the OPT system and should no 
longer be able to place students in OPT positions. Another commenter 
asserted that prohibiting for-profit institutions from participating 
would eliminate the incentive of such institutions to recruit F-1 
students under false pretenses. One commenter stated that the 
Administration is seeking to curb abuses by for-profit institutions in 
other areas, and that such schools should be precluded from placing 
students in OPT, or, at a minimum, should be subject to heightened 
oversight.
    Response. DHS declines to adopt the suggested restrictions. DHS, 
for example, does not believe it fair or appropriate to limit 
participation to an arbitrary number of accredited institutions and 
their students. Although DHS has chosen to set limits on participating 
institutions and degree programs by requiring accreditation, 
accreditation determinations are made by accrediting entities that are 
recognized by the Department of Education as having expertise in this 
area. DHS itself does not have the expertise to look behind the quality 
of assessments made by such entities, nor does it have the expertise 
necessary to further compare degree programs among accredited 
institutions. Notably, the

[[Page 13064]]

commenters that recommended limiting the extension to students at 
``top'' universities did not specify how DHS would determine which 
institutions would be in the ``top'' 50 or 100. Nor did the commenters 
explain how to address smaller institutions that may provide excellent 
STEM instruction but are not large enough to make more generalized 
lists of ``top'' schools. DHS believes it would be inappropriate to 
adopt such an ambiguous and subjective standard for distinguishing 
between educational institutions and their students in this rulemaking.
    DHS also does not agree that a settlement or an open federal or 
state law enforcement investigation, without more, should bar an 
institution and its students from participating in the STEM OPT 
extension program. A settlement or investigation is not, itself, a 
finding of wrongdoing, and a settlement, investigation, or fine may be 
totally unrelated to matters impacting the STEM practical training 
opportunity. Barring participation based on nothing more than the 
existence of an investigation would be fair neither to the relevant 
institution nor its students.
    DHS further declines to limit participation only to public and not-
for-profit institutions, as there are accredited for-profit 
institutions that operate in a lawful manner and offer a quality 
education. As noted above, DHS has chosen to rely on the determinations 
of accrediting entities with respect to the quality of participating 
institutions and their degree programs. Schools meeting the 
accreditation requirement are subjected to significant oversight, 
including periodic review of the institution's programs to determine 
whether it is meeting the established standards in the profession and 
achieving its stated educational objectives. These checks, in addition 
to the protections built into the rule, represent a comprehensive 
mechanism for detecting and avoiding fraud. In addition, DHS is unaware 
of any special risk of fraud presented by accredited for-profit 
institutions, and the commenter did not identify any data showing that 
such institutions commit fraud at a higher rate than other 
institutions. Requiring F-1 students to attend public or not-for-profit 
institutions is an unnecessary limitation that would reduce the 
program's adaptability and potential.
    Comment. Some commenters stated that the definition of 
``accreditation'' is too vague and may be abused by employers, schools, 
and students.
    Response. DHS disagrees with these comments. As noted above, to be 
eligible for a STEM OPT extension, a student's degree must be received 
from an educational institution accredited by an accrediting agency 
recognized by the U.S. Department of Education. An accrediting agency 
is a private educational association of regional or national scope that 
develops evaluation criteria and conducts peer evaluations of 
educational institutions and academic programs. See U.S. Department of 
Education Office of Postsecondary Education, ``The Database of 
Accredited Postsecondary Schools and Programs,'' available at http://ope.ed.gov/accreditation/. Because there is an objective list of 
accrediting entities recognized by the Department of Education that is 
publicly available, it is straightforward to confirm whether a school 
is appropriately accredited under the rule. For that reason, DHS 
disagrees that the term ``accreditation'' is vague.
    Comment. DHS also received a number of comments regarding the use 
of STEM degrees earned abroad. Some commenters, for example, requested 
that the rule allow students to use STEM degrees previously obtained 
from foreign institutions as a basis for STEM OPT extensions. One 
commenter disagreed with a statement in the proposed rule discussing 
the difficulty of determining the equivalency of foreign degrees, and 
stated that such equivalency is sometimes determined for other 
immigration programs. That commenter referenced the Council for Higher 
Education Accreditation as a resource that lists international 
accrediting agencies. Other commenters requested that, as an 
alternative to allowing foreign degrees, DHS should allow students to 
obtain STEM OPT extensions based on previously obtained degrees earned 
at the accredited overseas campuses of U.S. institutions. To that end, 
a commenter recommended that DHS clarify the term ``accredited U.S. 
educational institution'' to include accredited U.S. institutions 
located abroad as well as programs offered by accredited U.S. 
institutions at international branch campuses or other overseas 
locations, so long as the location or program located outside the 
United States falls under the school's institutional accreditation. 
This commenter also suggested that DHS consistently use the term 
``accredited U.S. educational institution'' throughout the rule to 
reduce ambiguity.
    Response. DHS does not believe it is appropriate to allow the use 
of degrees earned abroad as a basis for obtaining STEM OPT extensions. 
First, such extensions are part of the F-1 student visa program, and 
providing such extensions based on degrees previously earned abroad 
would be inconsistent with the Department's duty to administer the F-1 
program. Second, although DHS allows individuals to establish the 
equivalency of foreign degrees for other immigration programs, the need 
to assess such degrees presents particularly difficult complications in 
the OPT program. Among other things, assessing foreign degrees and 
making equivalency determinations are often difficult and time-
consuming tasks. Finally, DHS believes that limiting qualifying degrees 
to those from accredited and SEVP-certified U.S. institutions will help 
preserve the integrity of the STEM OPT extension program, because the 
U.S. accreditation process helps to ensure the quality of educational 
institutions and programs.
    Accordingly, this rule only permits a STEM OPT extension where the 
degree that is the basis of the extension is conferred by a domestic 
campus of a U.S. educational institution accredited by an entity 
recognized by the Department of Education and certified by SEVP at the 
time of application. Because SEVP certifies educational institutions at 
the campus level, the overseas campuses of U.S. educational 
institutions are not eligible for SEVP certification. A degree granted 
by an overseas campus of a U.S. educational institution will not 
qualify an F-1 student for a STEM OPT extension. This clarification is 
consistent with the basis for this rulemaking, which includes 
maintaining attractive conditions for international students to choose 
to study in the United States.
ii. Site Visits
    Comment. Some commenters inquired about the employer site-visit 
provision in the proposed rule, and specifically asked for 
clarification about the component within DHS that would conduct such 
site visits. In addition, a labor union opined that the Department of 
Labor would be the more appropriate agency to conduct site visits to 
ensure employer compliance with program requirements because 
``protection of labor standards is the central role of the [Department 
of Labor] and the agency must have an oversight role in a program with 
the size and scope of the OPT visa and its STEM extension.''
    Response. DHS anticipates that ICE, a component of DHS, will be the 
agency responsible for conducting site visits related to the STEM OPT 
extension program, though DHS may consult with DOL as appropriate based 
upon their expertise. These visits will be conducted by the appropriate 
component to ensure compliance with the requirements of this rule. DHS 
does

[[Page 13065]]

not intend to use these visits for other enforcement purposes; however, 
if evidence of a violation of other requirements is discovered during a 
site visit, such potential violation will be addressed appropriately.
    DHS's authority to administer and enforce the immigration laws, 
track and monitor students, and, relatedly, to conduct site visits, has 
strong statutory support. For example, federal law requires DHS to 
establish an electronic means to monitor and verify, among other 
things, the admission of international students into the United States, 
their enrollment and registration at approved institutions, and any 
other relevant acts by international students. See 8 U.S.C. 1372 and 
1762.
    Relatedly, these statutes also obligate DHS to collect information 
concerning whether each nonimmigrant student is maintaining his or her 
status, any change in an international student's program participation 
as the result of being convicted of a crime, each international 
student's degree program and field of study, and the date of each 
nonimmigrant student's termination of enrollment in a program 
(including graduation, disciplinary action or other dismissal, and 
failure to re-enroll), among other things. Id. Significantly, the 
Enhanced Border Security and Visa Entry Reform Act of 2002, which 
clarified and augmented the requirements for international student data 
collection, also requires DHS to ensure that information concerning 
such students is timely reported and that all records are being kept in 
accordance with federal law. See 8 U.S.C. 1762.
    Additionally, Homeland Security Presidential Directive No. 2 (HSPD-
2) (2001), which directed legacy INS to implement measures to end the 
abuse of student visas, requires DHS to track the status of 
international students (to include the proposed major course of study, 
the individual's status as a full-time student, the classes in which 
the student enrolls, and the student's source of financial support) and 
to develop guidelines that may include control mechanisms, such as 
limited-duration student immigration status. HSPD-2 also provides that 
DHS may implement strict criteria for renewing student immigration 
status. The rule's provisions regarding employer site visits are 
consistent with the foregoing authorities, which require DHS to monitor 
students pursuing STEM OPT training programs. The site visits reduce 
the potential for abuse and ensure that STEM OPT students receive 
structured and guided work-based learning experiences.
    Finally, DHS agrees that the Department of Labor (among other 
Federal, state, and local agencies) has significant expertise in 
worksite investigations, and may consult with the Department of Labor 
and other agencies as appropriate. Also, where appropriate, DHS will 
refer matters to the Department of Labor and other agencies should a 
site visit suggest that such a referral is warranted.
    Comment. Some commenters requested additional information about the 
procedures and scope of employer site visits under the proposed rule. 
For example, one commenter stated that ``the Proposed Rule does not 
clearly define the scope of a STEM OPT site visit, nor what information 
DHS could appropriately elicit during a site visit.'' Other commenters 
stated that the scope of any site visits should be limited to ensuring 
that the F-1 student remains employed at the STEM OPT employer sponsor 
identified in SEVIS, that the student is being compensated consistent 
with the information listed in SEVIS, and that the employer can confirm 
that the STEM degree is related to the practical training opportunity. 
They stated that site visits should not become a de facto ``gateway'' 
to other DHS audits, such as I-9 audits. They also stated that to the 
extent the scope of the site visit permits DHS to inquire into whether 
the duties and compensation of STEM OPT students are commensurate with 
that of U.S. workers, enforcement officers should be provided with very 
specific guidance to assure that STEM OPT investigations are not used 
as an additional mechanism to conduct I-9 audits. Another commenter 
specifically called for site visits to include documentation vetting 
and employee interviews for the purpose of ensuring that no U.S. 
workers are negatively impacted by a STEM OPT extension.
    Response. As indicated above, the purpose of the employer site 
visit is for DHS to ensure that information in SEVIS concerning the 
STEM OPT extension is accurate (i.e., that students and employers are 
engaged in work-based learning experiences that are consistent with the 
student's Form I-983, Training Plan for STEM OPT Students). As part of 
a site visit, DHS may confirm that the employer has sufficient 
resources and supervisory personnel to effectively maintain the 
program. In addition, DHS may ask employers to provide the evidence 
they used to assess wages of similarly situated U.S. workers. DHS will 
train the officials who conduct these visits so they understand what 
information DHS expects from employers. Site visits will be limited to 
checking information related to student STEM OPT employment, including 
the attestations made by the employer on the approved Training Plan. 
Additionally, site visits based upon complaints or evidence of 
noncompliance may be tailored to the concerns asserted. Site visits 
will not be used for other enforcement purposes unless evidence of a 
violation is discovered during such visits.
    Comment. Some commenters stated that DHS should provide advance 
notice for all site visits. Some stated that consistent with similar 
government audits, three business days of advance notice should be 
provided to the student and employer prior to site visits, while 
another commenter suggested that companies be provided with 72 hours' 
notice prior to the site visit in the absence of a complaint. One 
commenter stated that DHS should do unannounced site visits only when 
it has a reason to believe a violation has occurred based on specific, 
credible information from a known source that likely has knowledge of 
the employer's practices, employment conditions, or regulatory 
compliance.
    Response. DHS understands the commenters' concerns and has made 
changes in the final rule that balance concerns about employer burden 
against the need to ensure compliance with the rule. Under this final 
rule, DHS will provide 48 hours' advance notice for any site visit 
unless the visit is triggered by a complaint or other evidence of 
noncompliance with these regulations, in which case DHS may conduct a 
site visit without notice.
    Comment. One commenter stated that STEM OPT site visits should be 
conducted only by experienced and well-trained ICE officers, rather 
than by contractors. According to the commenter, DHS has previously 
recognized that the use of contractors to perform site visits on behalf 
of USCIS' Fraud Detection and National Security Directorate was 
inefficient and often problematic and thus eliminated their use in that 
context. Other commenters questioned the expertise of ICE officers to 
make judgments about employer training programs. One of these 
commenters stated that the proposed Mentoring and Training Plan 
requirement was so vague and devoid of standards that no meaningful 
review was possible, and no training plan would be deemed insufficient.
    Response. ICE currently intends to use federal employees for site 
visits under this rule. There may be times when contractors accompany 
federal employees, but ICE currently intends that federal employees 
will be in charge of such visits. DHS disagrees with the commenter's 
assessment that the

[[Page 13066]]

Training Plan requirements are overly vague and unenforceable. The 
program requires employers to provide detailed information regarding 
the nature of the training to be provided and the measures to be used 
to ensure that the goals of such training are met. Form I-983, Training 
Plan for STEM OPT Students, which will be used to keep track of this 
information, requires employers to provide the information necessary to 
verify compliance.
    Comment. Several commenters requested that DHS further specify 
requirements and procedures related to site visits. Such commenters 
expressed concern with the fact that the regulation does not specify: 
The manner in which a site visit would be conducted; the manner in 
which information gained in the course of a site visit would be stored, 
shared, or relied upon by the government; the manner in which a company 
or individual could correct or update information gained through a site 
visit; or the manner in which confidential business and personal 
information will be protected during a site visit.
    Response. DHS clarifies that site visits will be conducted in a 
manner that balances the burden to the employer with the need to ensure 
compliance with the program. This means that while ICE will physically 
inspect some sites, it also may request information concerning 
compliance through email or by phone. The information obtained during a 
site visit will be stored and maintained by ICE. DHS will notify an 
employer 48 hours before conducting a site visit unless DHS has 
received a complaint about the employer or has other evidence of non-
compliance, in which case DHS reserves the right to conduct a site 
visit without notice. If as a result of a site visit ICE determines 
that an employer or student needs to submit updated or corrected 
information, ICE will generally request the information in writing, 
with specific instructions on how the employer or student must submit 
the information. Federal law imposes protections on information 
obtained by DHS in connection with site visits, and the Department will 
comply with those requirements. Applicable federal laws include, but 
are not limited to, the Privacy Act, the Freedom of Information Act, 
and the Federal Information Security Management Act.
    Comment. Some commenters stated that ICE, prior to initiating a 
site visit, should attempt to verify program compliance requirements by 
communicating with the student and employer via telephone and email, as 
these means of communication are ``less intrusive'' than site visits. 
The commenters suggested that if the information could be verified 
through these other means, there would then be no need to conduct a 
time-consuming site visit.
    Response. DHS expects that it will use all available mechanisms to 
ensure compliance with STEM OPT extensions, including contacting 
employers, students, or DSOs by phone or email to verify or obtain 
information. The Department, however, reserves the right to conduct 
site visits of employers or schools to ensure full compliance with 
program requirements. The Department believes that the possibility that 
such site visits may be conducted to ensure compliance, including on an 
unannounced basis, will further incentivize compliance with the 
requirements of this rule.
iii. Unemployment Limits
    Comment. Commenters asked DHS to reconsider and adjust the amount 
of time a student may be unemployed over the course of their STEM OPT 
extension. Others asked that DHS not allow for any unemployment while a 
student is on a STEM OPT extension. One commenter suggested that an 
unemployment period is inconsistent with student status and with the 
training program component of OPT. The commenter stated that 
unemployment would be an unsupervised period inconsistent with DHS' 
security duties and would run contrary to protections in place for U.S. 
workers.
    By contrast, another commenter recommended that DHS allow unlimited 
unemployment during the STEM OPT extension period. The commenter stated 
that limiting the unemployment period will have the effect of tying 
students more closely to one employer and limiting their ability to 
change jobs. The commenter was concerned this would increase the 
opportunity for student exploitation. A different commenter suggested 
that DHS allow STEM OPT students to leave their initial employer during 
the 24-month extension, so as to allow students greater mobility and 
avoid potential exploitation. One commenter stated that the lack of 
mobility and other protections for individuals participating in OPT 
could lead those students who are worried about going out of status to 
``collude'' with exploitative employers to cover up violations of the 
safeguards for U.S. workers.
    Response. DHS respectfully disagrees with commenters' suggestions 
that the amount of time a student may be unemployed under this rule is 
too long, or that the allowance for a short period of unemployment 
should be eliminated altogether. DHS continues to believe that 
authorizing a limited period for possible unemployment during a 
student's STEM OPT extension is both fair and reasonable, and 
consistent with the stated aims and objectives of the STEM OPT 
extension. Moreover, the reporting requirement, with which a student 
must comply during any period of unemployment, effectively addresses 
security-related concerns by ensuring that DHS remains apprised of the 
student's location and status.
    DHS also believes that limiting unemployment during the STEM OPT 
extension period is necessary to support the program's purpose and 
integrity. The rationale for the program is to extend status to 
facilitate practical training. Allowing an unlimited period of 
unemployment would thus undermine the purpose for the extension and 
increase the opportunity for fraud and abuse. Moreover, the limited 
period of unemployment does not preclude a student who is unhappy with 
his or her current employer (for whatever reason) from effectively 
searching for a new practical training opportunity. Under this rule, 
the student may seek such a new opportunity either while still employed 
with his or her current employer or in the period of unemployment 
provided by this rule. Nothing in the rule prevents students from 
switching employers or from being unemployed for a temporary period, as 
long as they complete and submit a new training plan and comply with 
all reporting requirements.
    Finally, students who believe they are being exploited or abused by 
their employers in any manner have several mechanisms to address their 
concerns, including reporting the conduct to their DSO or the SEVP 
Response Center, or seeking legal redress in appropriate cases. DHS 
also provides information about studying in the United States on the 
DHS Study in the States Web site, which links to State Department 
information for nonimmigrants, including a ``Rights, Protections and 
Resources'' pamphlet.\87\ DHS encourages all students to seek 
appropriate redress and emphasizes that such action will not impact 
their F-1 status.
---------------------------------------------------------------------------

    \87\ See DHS, Study in the States, available at https://studyinthestates.dhs.gov/what-is-a-commission-based-recruiter; U.S. 
Department of State, Rights, Protections and Resources Pamphlet 
(Dec. 22, 2014), available at http://1.usa.gov/1G0Nt5X.
---------------------------------------------------------------------------

    Comment. Some commenters stated that students should not be 
penalized

[[Page 13067]]

for becoming unemployed for an extended period of time because their 
employers failed to provide appropriate training.
    Response. The rule provides for a limited period of authorized 
unemployment precisely because DHS is aware that there may be 
situations where students may have their employment terminated for 
reasons that are beyond their control. The rule's limited period of 
authorized unemployment is intended to provide students who find 
themselves in such a situation with sufficient time to seek and obtain 
alternative practical training opportunities directly related to their 
STEM fields of study.
    Comment. A DSO and a university requested clarification as to 
whether the proposed rule's authorized 90- and 150-day periods of 
unemployment are available at each educational level. They sought 
clarification, for instance, with respect to a student who had 
previously used his or her authorized periods of unemployment while 
engaged in post-completion OPT and a STEM OPT extension after 
completing an undergraduate degree. The commenters asked whether such a 
student would be eligible for the proposed rule's authorized periods of 
unemployment if the student subsequently engaged in post-completion OPT 
and a STEM OPT extension after completing a graduate degree.
    Response. Similar to the provisions in the 2008 IFR, a separate 90- 
or 150-day unemployment limit will apply to each post-completion OPT 
period. A post-completion OPT period for these purposes means an 
initial period of up to 12 months of OPT, as well as the related 24-
month STEM OPT extension. If a student completes one period of OPT 
(including a STEM OPT extension), and then pursues a second period of 
OPT on the basis of having earned a second degree at a higher 
educational level, the student will be able to benefit from the rule's 
authorized 90- and 150-day periods of unemployment (as appropriate) at 
both educational levels. DHS has revised the regulatory text to make 
this clear.
iv. Employment Status and Validation Reporting
    Comment. Some commenters requested that DHS eliminate the 
requirement for the employer to timely report the termination of a STEM 
OPT student or, alternatively, extend the proposed 48-hour notification 
requirement. Commenters suggested timeframes of 10 days or 21 days to 
better correspond with other reporting requirements in the rule. Other 
commenters suggested alternative reporting periods of three business 
days or five business days. With respect to the 48-hour notification 
requirement, one commenter stated that ``it can be administratively 
difficult to comply within such a short timeframe given the amount of 
administrative work that accompanies a termination.'' In addition, a 
commenter stated that having both the employer and the STEM OPT student 
report loss of employment is duplicative.
    Response. After reviewing these comments, DHS has agreed to extend 
the period for complying with the reporting requirement from 48 hours 
to 5 business days. DHS believes such a timeframe is more realistic and 
more likely to result in consistent compliance, while at the same time 
ensuring that DHS obtains timely information with respect to 
international students. DHS has been directed by Congress to monitor 
and track students, and obtaining current information is important to 
ensure that DHS continues to meet its responsibilities.
    DHS recognizes that the rule requires reporting from both employers 
and students. While such dual reporting requirements may seem 
duplicative, DHS believes they are critical to ensuring compliance with 
program requirements. Employer reporting, for example, would be prudent 
in a situation involving a student who fails to report his or her 
termination so as to remain in the United States in violation of his or 
her status. Employers are also likely to have additional resources in 
comparison to individual employees, especially those who recently 
became unemployed. Moreover, DHS believes the burden imposed by the 
reporting requirements is minimal. Employers and students can satisfy 
these requirements with a simple email to the DSO indicating that the 
student was terminated or has otherwise departed, as well as the 
applicable date of such termination or departure.
    Comment. Several educational institutions expressed opposition to 
the requirement that DSOs be informed whenever a student on a STEM OPT 
extension leaves the employment before the end of the extension period. 
These commenters expressed concern about the DSOs' role in such 
situations, especially because many students on STEM OPT extensions 
have left campus and are often removed from their university ties. A 
few universities stated that DHS should require employers to report 
this information directly to DHS, instead of to the DSO. One commenter 
argued that the reporting requirement would be an additional 
administrative burden on DSOs, who would now be responsible for data 
that that they do not ``own.'' Another commenter expressed concern that 
the DSO could be held responsible for not having this information if 
the employer fails to report it to them in a timely manner, or that the 
student could also be held responsible.
    Response. While DHS understands the commenters' logistical concerns 
regarding students potentially not located on or near the DSO's campus, 
the compliance measure discussed in this section is not novel. Rather, 
it has been in place since implementation of the 2008 IFR. Moreover, 
DHS has sought to balance the burden that this requirement places on 
DSOs with the need for adequate oversight of the STEM OPT extension. 
Because DSOs, unlike STEM OPT students or employers, have access to 
SEVIS, DHS continues to believe the program is best served by requiring 
employers and students to report these changes to DSOs so that such 
information can be uploaded into SEVIS on a timely basis.
    Additionally, with the changes in this final rule, an employer is 
now required to report the termination or departure of a STEM OPT 
student within five business days of the termination or departure, if 
the termination or departure is prior to the end of the authorized 
period of OPT. DHS believes this requirement, placed upon the entity 
with the closest connection to the student at the time of the 
termination or departure, is an effective mechanism for tracking 
students. The provision reflects DHS' belief that the responsibility to 
report should initially rest with the student or employer, as 
appropriate, and that DSOs should continue serving in the same role 
they had before--helping DHS track students and providing timely access 
to reported information. This system also reflects DHS' view that if an 
educational institution wishes to gain the benefits of F-1 students' 
enrollment with their school, including through the attraction of such 
students based upon the potential to participate in an extended period 
of practical training via the STEM OPT extension, the institution will 
be willing to undertake the associated reporting requirements as well. 
Finally, DHS is currently working on ways to allow other program 
participants to input information directly into SEVIS. Until that 
occurs, however, DHS believes the current reporting protocol should 
remain in place.
    Comment. Many DSOs submitted comments stating that students should 
be responsible for updating their

[[Page 13068]]

information directly into SEVIS and that SEVIS should send automatic 
reminders to students about upcoming deadlines, such as deadlines for 
reporting termination of OPT.
    Response. As noted above, DHS recognizes that requiring DSOs to 
provide STEM OPT student information may, at times, be burdensome. To 
aid in reducing this burden, DHS is developing a portal in SEVIS which, 
once fully deployed, will allow STEM OPT students to directly input 
information into SEVIS for DSO review. DHS plans to have the first 
stages of this portal, designed specifically to allow OPT students to 
submit information on their own behalf, operational by the beginning of 
2017.
    Comment. One employer stated that the requirement to notify DSOs in 
cases of termination or departure should be triggered only when STEM 
OPT students have actually abandoned their jobs, rather than for all 
absences of five consecutive days. The commenter noted that there may 
be legitimate reasons why an employee may be absent from work for a 
five-day period without the consent of the employer. The commenter 
suggested that employers should be allowed to follow their normal HR 
guidelines when determining whether the employment has been 
``abandoned'' before reporting an employee's absence to the DSO, which 
may be either shorter or longer than the NPRM's five-day requirement.
    Response. As noted above, STEM OPT is a cooperative undertaking 
between the student and employer, and both voluntarily commit to 
participating in the program. DHS therefore maintains that it is the 
employer's responsibility to notify the student's DSO if, for whatever 
reason, the student ceases to participate. While DHS understands that 
there may be instances where an employee may be absent from work for 
five consecutive days without the consent of the employer (such as a 
medical emergency requiring prolonged hospitalization where the 
employee is unable to notify the employer), any absence where the 
employee is unable to notify the employer and obtain consent remains 
material to the student's participation in the STEM OPT extension. DHS 
therefore is maintaining the requirement that an employer must notify 
the STEM OPT student's DSO if the student has been absent from work for 
five consecutive business days without the consent of the employer.
v. Periodic Student Evaluations
    Comment. Some commenters requested clarification concerning the 
student and employer's respective roles in completing the student 
evaluation. For instance, some commenters noted that the proposed form 
referred to self-assessment by the student, but was entitled ``Six-
Month Evaluation/Feedback on Student Progress.'' Similarly, a commenter 
stated that the evaluation should involve input from both the student 
and a supervisor, and the form should be structured in a way that 
allows for a supervisor's comments. One commenter requested that the 
evaluation consist solely of self-evaluations by the student, noting 
the burdens on employers of evaluations every six months.
    A commenter expressed concern about being required to use the 
proposed Mentoring and Training Plan to evaluate STEM OPT students, 
explaining that the proposed rule's requirements ``will not add value 
and will merely add redundant bureaucratic requirements for employers, 
who are already following their own internal processes for these 
employees.'' The commenter stated that its company already ``provides 
an annual review of individual employee performance and compensation'' 
and that its review process ``is the culmination of year round 
performance management activities in which employees receive a formal 
review of their performance, development goals for the upcoming year, 
and a compensation review.'' One commenter stated that the proposed 
process for completing the evaluation (which entails the student 
preparing it, the employer signing off on it, and the DSO retaining a 
copy) is redundant to the Training Plan.
    Response. DHS appreciates the commenters' concerns and clarifies 
that student evaluations are a shared responsibility of both the 
student and the employer to ensure that the student's practical 
training goals are being satisfactorily met. The student is responsible 
for conducting a self-evaluation based on his or her own progress. The 
employer must review and sign the self-evaluation to attest to its 
accuracy. By requiring employers to review the self-evaluations, DHS 
better ensures that employers and students will continue working 
together to help the student achieve his or her training goals. DHS 
believes that this requirement is integral to the success of the STEM 
OPT extension.
    DHS has changed the title of the evaluation section to ``Evaluation 
on Student Progress.'' DHS has not modified the evaluation to include a 
separate space for an employer to provide comments, because many 
employers expressed concern about the burden involved in reviewing the 
Training Plan, and DHS determined that an additional requirement was 
unnecessary. However, nothing in the rule prevents an employer from 
attaching and submitting such an appraisal of a STEM OPT student.
    DHS disagrees that the student evaluation provision duplicates or 
displaces existing employer processes for evaluating employee 
performance. The evaluation does not require employers to evaluate how 
well a STEM OPT student is performing his or her core duties at a job. 
Instead, the evaluation section of the form is a mechanism for the 
student to document his or her progress towards meeting specific 
training goals, as those goals are described in the Training Plan. DHS 
also disagrees that the student evaluation provision duplicates or is 
redundant to the Training Plan. In contrast to the Training Plan, which 
helps the student set his or her training objectives and ensures that 
the student's training conforms to the requirements of this rule, the 
12-month evaluation confirms that the student is making progress toward 
his or her training objectives.
    Comment. DHS received a number of comments from employers about the 
frequency of the proposed six-month student evaluation requirement. 
Some commenters stated that requiring students and employers to 
participate in such an evaluation every six months would be ``overly 
burdensome'' and would represent an ``unprecedented level of additional 
reporting without commensurate improvement in compliance outcomes.'' 
Some commenters indicated that they perform employee reviews every six 
months; however, given the timing of student graduations and STEM OPT 
start dates, the time of the year when these reviews occur might not 
coincide precisely with the schedule that is being mandated by DHS. 
Some commenters stated that DHS should require only annual evaluations 
to reduce an employer's time and paperwork burdens. Another commenter 
asked for 180 days to allow companies to adjust their processes if DHS 
insists on requiring evaluations every six months.
    Response. DHS acknowledges the concerns expressed by some employers 
about the ability to implement the evaluation requirement every six 
months as proposed in the NPRM. While any burden associated with the 
evaluation is expected to rest in part on the student (who is 
responsible for drafting the self-assessment portion of his or her 
evaluation and ultimately submitting the evaluation to the DSO), DHS 
recognizes that the employer plays

[[Page 13069]]

an important role in the student's evaluation by providing feedback to 
the student and confirming the accuracy of the evaluation. Because of 
the concerns raised by commenters, DHS has decided to eliminate the 
six-month requirement and instead require annual evaluations: One 
evaluation after the first 12 months and a final evaluation when the 
student completes his or her practical training. DHS believes that 
annual reporting is a reasonable requirement when balanced against 
DHS's obligation to oversee the program and monitor students.
    As finalized in this rule, a student on a 24-month STEM OPT 
extension must submit his or her first evaluation to the DSO within one 
year and 10 days of the first day of the validity period reflected on 
the Employment Authorization Document (EAD). Similarly, the STEM OPT 
student will be required to submit the final evaluation within 10 days 
of the conclusion of his or her practical training opportunity. DHS 
generally expects employers and students to be able to complete all 
reporting in a timely manner.
    Comment. Commenters requested that DHS clarify when STEM OPT 
students must submit their periodic evaluations to their DSOs. 
Commenters stated that the proposed rule did not describe the reporting 
timeframe clearly. A commenter stated that it would be too burdensome 
to require students to submit each six-month evaluation within 10 
business days of the conclusion of the evaluation period. The commenter 
suggested that DHS allow students to submit the evaluation either 15 or 
30 days on either side of the reporting date. Similarly, a number of 
DSOs asked whether there would be SEVIS functionality for students who 
do not present Training Plans and whether there would be penalties for 
students who submit them late, and if so, what these penalties are. One 
commenter requested that, if the DSO is required to collect students' 
training plans for the six-month ``reporting obligations,'' DHS provide 
lead time of at least 30 days between the ``alert'' and the deadline 
for submission.
    Response. DHS clarifies that under the proposed rule, STEM OPT 
students would have been required to submit each six-month evaluation 
prior to the conclusion of each six-month period. As noted above, DHS 
has changed the evaluation period from six months to 12 months. This 
change should make the requirements on students and DSOs less 
burdensome. DHS also agrees with the commenters that suggested 
additional flexibility and clarity for the submission of student 
evaluations. Accordingly, this final rule also revises the proposal by 
providing that a student must submit the 12-month and final evaluations 
no later than 10 days following the conclusion of the applicable 
reporting period.
    In response to the questions from DSOs, DHS notes that the 
deadlines for submitting the required training plan and evaluations are 
firm. In order to maintain F-1 status, the STEM OPT student must submit 
the required materials to the DSO on a timely basis. As noted above, 
updates to SEVIS are being developed to make it easier for students to 
meet these submission requirements. DHS does note, however, that for 
the annual evaluation requirement, a full Training Plan form need not 
be submitted. Rather, the student would need to timely provide the 
evaluation section of the form to the DSO. DHS believes the associated 
timeline provides sufficient flexibility for all parties to comply with 
these requirements.
vi. Reporting of Material Changes to or Deviations From the Training 
Plan
    Comment. Some commenters submitted comments related to the 
attestation included in the proposed Mentoring and Training Plan that 
would have required the student and employer to notify the DSO at the 
earliest available opportunity regarding any material changes to, or 
material deviations from, the training plan (``material changes''). The 
proposed plan indicated that such a material change would include a 
change in supervisor. A commenter objected to this requirement and 
posited that requiring the reporting of material changes would not 
advance the policies underlying the training plan requirement. Some 
commenters requested that DHS clarify the meaning of the term 
``material'' in this context. Commenters stated that such clarification 
was necessary to minimize instances of over-reporting of immaterial 
changes to the Training Plan. One commenter stated that a mere change 
of supervisor should explicitly be considered an immaterial change to 
the STEM OPT opportunity.
    Finally, a commenter recommended placing the responsibility for 
reporting material changes with the F-1 student, not the employer. The 
commenter reasoned that shifting this particular reporting obligation 
to students is consistent with students' other reporting obligations 
under the proposed rule, including ``reporting changes of employer.''
    Response. DHS believes that the Training Plan requirement would be 
seriously undermined if DHS allowed students and employers to make 
material changes or deviations without creating a record of such 
changes and reporting those changes to the DSO. The reporting 
requirement keeps students and employers accountable to the original 
Training Plan, and ensures that the DSO and DHS have access to accurate 
information about STEM OPT students. DHS therefore declines the 
suggestion to eliminate the requirement to report material changes.
    DHS agrees, however, that further clarification is warranted. 
Accordingly, DHS has revised the final regulatory text to make clear 
that the STEM OPT student and employer are jointly required to report 
material changes. The regulatory text also clarifies that material 
changes may include, but are not limited to, any change of Employer 
Identification Number resulting from a corporate restructuring; any 
reduction in compensation from the amount previously submitted on the 
Training Plan that is not a result of a reduction in hours worked; any 
significant decrease in hours per week that a student engages in the 
STEM training opportunity; and any decrease in hours below the 20-
hours-per-week minimum required under this rule. If these or other 
material changes occur, the student and employer must sign a modified 
Training Plan reflecting the material changes or deviations, and they 
must ensure that the plan is submitted to the student's DSO at the 
earliest available opportunity.
    DHS agrees with the comment stating that a change of supervisor 
does not, by itself, meet the level of a material change or deviation 
that would require submitting a modified Training Plan. Similarly, it 
is not necessarily a material change if a STEM OPT student rotates 
among different projects, positions, or departments, or there is a 
change in the F-1 student's assigned division or research focus. Such 
changes are not material unless they render inaccurate the information 
in the F-1 student's original Training Plan related to the nature, 
purpose, oversight, or assessment of the student's practical training 
opportunity.
    In response to commenters' concerns, DHS has revised the regulatory 
text to make this clear. Under this final rule, a material change is a 
change that DHS has specifically identified as ``material'' by 
regulation, renders an employer attestation inaccurate, or renders 
inaccurate the information in the Training Plan on the nature, purpose, 
oversight, or assessment of the student's practical training 
opportunity. Thus, for example, a change in supervisor that results in 
such inaccuracy would be a

[[Page 13070]]

material change, but a change in supervisor standing alone is not 
material.
    Because DHS expects that not all changes in supervisor would be 
material, DHS has revised the Training Plan form to replace the 
reference to a student's supervisor with a reference to the ``Official 
Representing the Employer.'' Along with the changes discussed above, 
this change aims to produce flexibility for employers in completing the 
requisite sections of the form and further clarifies that the Training 
Plan would not require updating solely because the student is assigned 
new project supervision.
    Finally, DHS declines to adopt the recommendation to make the 
student solely responsible for reporting material changes, as the 
employer should be accountable for the Training Plan that it helped 
prepare. This joint employer-student requirement strengthens DHS's 
ability to track F-1 nonimmigrants and is essential to monitoring 
employer compliance, maintaining strong U.S. worker safeguards, and 
ensuring continuing employer-accountability.
    Comment. A university stated that material changes or deviations to 
the original Training Plan will be self-reported events and that the 
DSO will have no other way of knowing if or when they occur. The 
commenter suggested that if the Department simply seeks to have this 
information on file, and there is no role for the DSO other than to 
collect the information, then such information should be submitted 
directly to DHS by the employer or student. The commenter further 
stated that the proposed rule was silent regarding DSO responsibilities 
over modified Training Plans, and that there appear to be no ``teeth'' 
for addressing a student's failure to report these changes.
    Response. DHS understands that DSOs have a limited role with 
respect to receiving and storing material changes to, or deviations 
from, submitted Training Plans. DHS is developing a portal in SEVIS to 
allow students to provide their own information, including confirmation 
of modified Training Plans. At this time, however, the DSO's role in 
this regard remains essential to the effective administration of the 
STEM OPT extension. Consequently, the DSO at the student's school of 
most recent enrollment remains responsible for providing SEVP with 
access to the relevant information described in this section. This rule 
also makes clear that it is the student's responsibility to provide 
changes in information to his or her DSO, and that a failure to do so 
would constitute a violation of the student's F-1 status.
    Comment. One commenter recommended that DHS require that changes in 
compensation be reported only when a student's salary has been lowered. 
The commenter stated that if this change were adopted, it would 
eliminate a significant burden on students and DSOs by eliminating the 
need to report when a student receives an annual cost-of-living 
increase as part of the employer's overall compensation program. The 
commenter stated that this would also avoid confusion over whether to 
report every time the student receives a raise or stock options, or 
when other forms of non-cash compensation are added to the student's 
compensation package.
    Response. DHS understands the commenter's concern that the proposed 
rule lacked clarity on when compensation changes were required to be 
submitted through the Training Plan for STEM OPT Students. To avoid any 
confusion, the final rule clearly states that employers are responsible 
for reporting only material changes to the Training Plan, which will 
include changes to the compensation reporting field of the form, and 
are required to do so at the earliest available opportunity. However, a 
compensation change qualifies as material only when it is a reduction 
in compensation from the amount previously submitted on the Training 
Plan that is not the result of a reduction in hours worked. An increase 
in compensation, on its own, does not constitute a material change that 
must be reported. But such an increase may constitute a material change 
in the totality of the circumstances, such as when the increase is not 
commensurate with an increase in compensation afforded to the 
employer's similarly situated U.S. workers.
vii. General Comments on DHS Enforcement, Monitoring, and Oversight
    Comment. DHS received a number of comments related to the 
Department's ability to track F-1 students on STEM OPT extensions. One 
commenter, for example, cited a February 2014 report from the 
Government Accountability Office (GAO) that highlighted difficulties 
experienced by the Department in tracking F-1 students engaging in 
practical training.\88\ The commenter expressed concern over the 
ability of nonimmigrants to overstay their authorized periods of stay, 
and suggested that making schools responsible for former students would 
be unrealistic and would create a national security issue. Another 
commenter asked how DHS would keep track of all students participating 
in STEM OPT. Some commenters suggested that DHS adopt and publish a 
public list of program violators, identifying those companies and 
universities found to be abusing the STEM OPT extension or otherwise 
failing to comply with program requirements. One commenter requested 
information regarding actions DHS has taken to address problems 
identified by the February 2014 GAO report on the OPT program.
---------------------------------------------------------------------------

    \88\ The commenter referred to GAO, ``Student and Exchange 
Visitor Program: DHS Needs to Assess Risks and Strengthen Oversight 
of Foreign Students with Employment Authorization,'' Feb. 2014, 
available at http://www.gao.gov/assets/670/661192.pdf.
---------------------------------------------------------------------------

    Response. DHS believes it has made important improvements to the 
oversight of the STEM OPT extension with this rule. In addition to 
maintaining the validation reporting requirement, this rule establishes 
an interlocking set of requirements that facilitate DHS enforcement 
(site visits), permit DHS to better monitor students on STEM OPT 
(evaluations, notification of material changes, and required notice if 
a student leaves an employer or fails to show up for five consecutive 
business days without the employer's consent), and protect the 
integrity of the program (accreditation requirements and unemployment 
limits). These requirements are intended to help DHS track F-1 
nonimmigrants and better ensure their departure. See, e.g., 8 U.S.C. 
1103, 1184, 1372. All of these are discussed in detail above.
    DHS believes that the enforcement, monitoring, and oversight 
provisions of this rule provide the necessary tracking resources and 
mechanisms to appropriately monitor compliance and to enforce the law 
against violators. For these reasons, the Department declines to adopt 
the suggestion to publish a list of program violators.
    With regard to the 2014 GAO Report, DHS first notes that the report 
and its conclusions concerned individuals beyond the limited population 
of STEM OPT students, who represent a small subset of the total F-1 
population engaging in authorized employment in the United States.\89\ 
The report is thus much broader in scope than are the regulatory 
changes DHS has considered with this rulemaking. Nonetheless, DHS 
believes it has adequately addressed many aspects of the GAO report 
impacting STEM OPT extensions. DHS

[[Page 13071]]

has taken measures or is finalizing action regarding seven 
recommendations included in the report. For example, DHS has completed 
or is in the process of finalizing the following:
---------------------------------------------------------------------------

    \89\ As of September 16, 2015, over 34,000 students were in the 
United States on a STEM OPT extension, as compared to more than 1.2 
million international students studying in the United States.
---------------------------------------------------------------------------

     Identifying and addressing risks in the OPT program 
through interagency coordination, including using relevant information 
from ICE's Counterterrorism and Criminal Exploitation Unit and field 
offices;
     Requiring that F-1 OPT students, both still in school and 
who have completed their education, provide DSOs with employer 
information, including their employer's name and address, so that DSOs 
can record that information in SEVIS;
     Developing and distributing guidance to DSOs for 
determining whether a practical training opportunity relates to a 
student's area of study, and requiring that DSOs provide information in 
SEVIS to help ensure that the regulatory requirement is met;
     Requiring that students report to DSOs, and that DSOs 
record in SEVIS, students' initial date of employment and any period of 
unemployment;
     Developing and implementing a process for SEVP to inform 
USCIS when students approved for OPT have transferred schools;
     Developing guidance to DSOs and USCIS regarding the 
definition of a full academic year for the purposes of recommending and 
authorizing OPT; and
     Developing and implementing a mechanism to monitor 
available information in SEVIS to determine if international students 
are accruing more OPT than allowed by DHS regulation.
    Although DHS is always interested in ways to improve the security 
and efficacy of its programs, the Department believes that the above-
referenced enforcement measures, as well as those described in this 
final rule, are thorough and sufficient to address the concerns 
discussed in the GAO report that relate to STEM OPT extensions.
    Comment. Commenters expressed concern that many F-1 students on 
STEM OPT extensions work in fields unrelated to their areas of study 
and falsify work experience. Some commenters stated that many employers 
fabricate work documents in an attempt to show that a work experience 
relates to a student's field of study. Some commenters requested that 
DHS take additional steps to ensure that F-1 students do not work in 
unrelated fields, such as in restaurants, motels, gas stations or 
similar places of employment.
    Other commenters expressed concerns about consulting firms that may 
seek to exploit F-1 students by underpaying them during their STEM OPT 
extension. One commenter asked DHS to implement background checks for 
all STEM OPT students before they accept employment opportunities. 
Similarly, another commenter suggested that DHS include annual in-
person reissuance of identification cards with photos and fingerprints 
among measures required for ``all OPT students.''
    Response. As noted above, this rule includes multiple requirements 
to ensure strong program oversight. DHS closely monitors the STEM OPT 
extension program, including F-1 students and schools certified to 
enroll such students. DHS takes claims of fraud and abuse very 
seriously and encourages all individuals to contact DHS if they have 
information regarding any individual or employer that he or she 
believes is engaging in fraud or abuse. Individuals possessing such 
information are encouraged to submit it online at https://www.ice.gov/webform/hsi-tip-form. Moreover, the rule requires employers to sign the 
Training Plan and comply with all reporting requirements, while 
providing for site visits to independently verify compliance. These 
additional requirements will mitigate the potential for fraud and abuse 
of the F-1 visa program and STEM OPT extension.
    Regarding the request for DHS to implement background checks on 
STEM OPT students, DHS confirms that this process is already in place. 
USCIS conducts background checks on all STEM OPT students before 
rendering a final decision on their Form I-765, Application for 
Employment Authorization. DHS does not believe the commenters' 
suggested additional security measures (such as an annual ID card 
reissuance requirement) are necessary or appropriate at this time.\90\
---------------------------------------------------------------------------

    \90\ DHS notes that several commenters suggested that DHS 
implement new requirements for ``all OPT students.'' DHS believes 
these comments go beyond the scope of regulatory changes DHS has 
considered with this rulemaking. However, DHS understands and 
appreciates the commenters' concerns. As stated previously, the rule 
implements significant measures to strengthen program oversight and 
to mitigate fraud in the STEM OPT extension. DHS may consider 
extending these measures more broadly in a future rulemaking.
---------------------------------------------------------------------------

    Comment. Some commenters stated that the proposed rule was silent 
on the types of penalties that students and employers may face for non-
compliance with reporting requirements. Other commenters expressed 
concern that DSOs may be held responsible if students and employers 
fail to comply with those requirements. One commenter described the 
reporting requirements as ``self-reporting events,'' noting that DSOs 
will have no way of monitoring students or knowing about violations if 
they are not reported to the DSOs. That commenter suggested that 
``[t]here should be no repercussions to the school or the DSO for not 
getting these data from the student or employer.'' Similarly, another 
commenter voiced concerns about whether there will be consequences for 
DSOs if employers or students fail to meet their reporting obligations 
under the proposed rule, how DHS will monitor employers' and students' 
compliance with the proposed rule's reporting requirements, and whether 
students will face consequences if employers fail to timely report 
required information.
    Response. DHS respectfully disagrees with the commenters' 
statements concerning available consequences for non-compliant students 
or employers. The rule reflects ICE's procedures for monitoring 
nonimmigrant students and provides for investigating employers' 
compliance with the rule's requirements, including all reporting and 
recordkeeping obligations, in accordance with SEVP's authority to track 
and monitor students. Moreover, the rule clarifies that employers will 
be monitored consistent with the site visit provisions, and that DHS 
has the ability to deny STEM OPT extensions with employers that DHS 
determines have failed to comply with the regulations. With regard to 
STEM OPT students, the rule also provides for serious consequences in 
instances of non-compliance. For example, the rule specifies that 
compliance with reporting requirements is required to maintain F-1 
status. See 8 CFR 214.2(f)(12)(i)-(ii). Accordingly, a student's 
failure to comply with reporting obligations will result in a loss of 
F-1 status. Furthermore, although DHS expects certified schools and 
DSOs to meet their regulatory obligations, including updating a 
student's record to reflect reported changes for the duration of OPT, 
DHS does not intend to pursue enforcement actions against schools or 
their officials for the reporting failures of third parties.

C. Qualifying F-1 Nonimmigrants

1. Description of Final Rule and Changes From NPRM
    This rule allows only certain F-1 nonimmigrants to receive STEM OPT 
extensions. The rule requires the student's STEM OPT opportunity to be 
directly related to the student's STEM degree; defines which fields DHS

[[Page 13072]]

considers to be ``STEM fields'' for purposes of the extension; and 
allows students to use a previously obtained STEM degree as a basis for 
a STEM OPT extension. The rule effectively prohibits students from 
using the STEM OPT extension to work in a volunteer capacity, among 
other requirements to ensure appropriate oversight and training in 
connection with the extension. Finally, this rule clarifies that a 
student may qualify for a STEM OPT extension notwithstanding that the 
student has yet to complete a thesis requirement or equivalent, so long 
as the thesis requirement or equivalent is the only degree requirement 
still outstanding at the time of application (although this is not an 
available option when using a previously obtained STEM degree). The 
proposed rule included most of these provisions; the final rule makes 
changes and clarifications in response to public comments. We summarize 
these provisions and changes below.
i. Relationship of STEM OPT Opportunity to the Student's Degree
    As noted above, under this final rule, the student's proposed STEM 
OPT opportunity must be directly related to the student's STEM degree. 
Like OPT generally, a STEM OPT extension is at its core a continuation 
of the student's program of study in a work environment. This provision 
is finalized without change.
ii. Limitation to STEM Degrees Only
    This final rule limits eligibility for the STEM OPT extension to 
those qualifying students who have completed a degree in a STEM field. 
The degree that serves as the basis for the STEM OPT extension must be 
a bachelor's, master's, or doctoral degree. Under this rule, a ``STEM 
field'' is a field included in the Department of Education's CIP 
taxonomy within the 2-digit series containing engineering, biological 
sciences, mathematics, and physical sciences, or a related field. In 
general, related fields will include fields involving research, 
innovation, or development of new technologies using engineering, 
mathematics, computer science, or natural sciences (including physical, 
biological, and agricultural sciences). This definition is drawn in 
part from a definition developed by the Department of Education's 
National Center for Education Statistics (NCES).\91\ DHS added the 
definition of ``related fields'' in response to comments about the 
clarity of the proposed definition.
---------------------------------------------------------------------------

    \91\ U.S. Department of Education, NCES, Institute of Education 
Sciences, ``Stats in Brief'' (July 2009), available at http://nces.ed.gov/pubs2009/2009161.pdf.
---------------------------------------------------------------------------

    DHS will maintain a complete list of fields that DHS has determined 
fall within the regulatory definition of ``STEM field.'' This list is 
known as the STEM Designated Degree Program List (``STEM list''). DHS 
may publish updates to the STEM list in the Federal Register. A clear 
definition of the types of degree fields that DHS considers ``STEM 
fields'' for purposes of the STEM OPT extension will more effectively 
facilitate the process for altering categories contained within the 
STEM list.
    In the proposed rule, DHS advised commenters that it was 
considering future revisions of the STEM list to include certain 
degrees listed within the two-digit series for Agriculture, Agriculture 
Operations, and Related Sciences; Computer and Information Sciences and 
Support Services; Engineering; Engineering Technologies and 
Engineering-Related Fields; Biological and Biomedical Sciences; 
Mathematics and Statistics; and Physical Sciences. As noted in the 
comment summary below, DHS received a number of recommendations for 
fields to add to the STEM list and one recommendation to remove a field 
from the list. As discussed below DHS has revised the list in response 
to the comments received; the final list is available in the docket for 
this rulemaking. Consistent with past practice, DHS will continue to 
accept for consideration suggested changes to the STEM list at 
SEVP@ice.dhs.gov.
iii. Prior STEM Degrees
    The rule allows students to use a previously obtained and directly 
related STEM degree from an accredited school as a basis to apply for a 
STEM OPT extension. This provision makes the STEM OPT extension 
available to students who have significant prior background in STEM but 
who are currently engaging in practical training that has been 
authorized based on their study towards a non-STEM degree. The 
extension is available only to those students who seek to develop and 
utilize STEM skills from their prior STEM degree during the STEM OPT 
extension. A DSO at the student's school of most recent enrollment is 
responsible for certifying a prior STEM degree, which must have been 
obtained in the ten years prior to the DSO recommendation. In addition, 
the regulatory text clarifies that the practical training opportunity 
that is the basis for the 24-month STEM OPT extension must directly 
relate to the degree that qualifies the student for such extension, 
including a previously obtained STEM degree.
iv. Prior STEM Degrees--Additional Eligibility Requirements
    This final rule includes a number of requirements intended to 
ensure the educational benefit of a STEM OPT extension based on a 
previously obtained STEM degree. First, for a student relying on a 
previously obtained degree, the student's most recent degree must also 
be from an accredited institution, and the student's practical training 
opportunity must be directly related to the previously obtained STEM 
degree. Second, for a previously obtained degree to qualify as the 
basis for a STEM OPT extension, the degree must have been received 
within the 10 years preceding the student's STEM OPT application date.
    As previously noted, the final rule clarifies that the prior degree 
cannot have been conferred via an overseas campus. The institution that 
conferred the prior degree must be accredited and SEVP certified at the 
time the DSO recommends the student for the STEM OPT application.\92\
---------------------------------------------------------------------------

    \92\ This final rule also clarifies that a qualifying, 
previously obtained degree provides eligibility for the STEM OPT 
extension so long as the educational institution that conferred the 
degree is accredited at the time of the student's application for 
the extension. As discussed more fully below, DHS does not have full 
access to historical information on accreditation for all U.S. 
schools. An organization's current status as accredited nonetheless 
serves as a signal of the quality of the education that the 
organization offers.
---------------------------------------------------------------------------

v. Volunteering and Bona Fide Employer-Employee Relationships
    The final rule clarifies issues relating to various types of 
practical training scenarios and whether such scenarios qualify an F-1 
student for a STEM OPT extension. The rule specifically clarifies that 
a student may not receive a STEM OPT extension for a volunteer 
opportunity. The rule also requires that a student must have a bona 
fide employer-employee relationship with an employer to obtain a STEM 
OPT extension. In response to comments received, DHS clarifies that 
students may be employed by start-up businesses, but all regulatory 
requirements must be met and the student may not provide employer 
attestations on his or her own behalf.
vi. Thesis Requirement
    The final rule clarifies that F-1 students who have completed all 
other course requirements for their STEM degree may be eligible for a 
STEM OPT extension notwithstanding the

[[Page 13073]]

continuing need to complete the thesis requirement or equivalent for 
their STEM degree. DHS believes that this flexibility is consistent 
with DHS's historical interpretation of the regulatory provisions 
governing STEM OPT extensions. This exception, however, does not apply 
with respect to a previously earned STEM degree if the student seeks to 
base the STEM extension on such a degree.
2. Public Comments and Responses
i. Relationship of STEM OPT Opportunity to the Student's Degree
    Comment. DHS received a number of comments regarding the proposed 
relationship between students' degrees and their practical training 
opportunities. Several commenters agreed with DHS that the rule should 
require a direct relationship between the student's qualifying STEM 
degree and the practical training opportunity. One commenter indicated 
that the Department needed to be flexible in evaluating such 
relationships, particularly because of rapid changes in certain STEM 
fields. Specifically, the commenter stated that ``[i]n assessing 
whether a STEM degree relates to a particular position, it is important 
for DHS to be open to employers' explanations regarding the nexus 
between the STEM degree field and the employment opportunity.'' Other 
commenters suggested that STEM OPT students should work only in the 
exact fields in which they earned their degrees, rather than in other 
related fields where their skills may be valued by employers. One 
commenter opposed the requirement that work be directly related to the 
degree, especially in regard to prior STEM degrees. The commenter 
suggested that eliminating the nexus requirement would create greater 
opportunities for STEM OPT students.
    Response. DHS does not believe further changes to the ``directly 
related'' standard are necessary or appropriate. DHS disagrees, on the 
one hand, with comments recommending that STEM OPT extensions only be 
allowed where the practical training will be in the exact field in 
which the F-1 student earned his or her degree. DHS also disagrees, on 
the other hand, with comments recommending the elimination of any 
connection between the degree and the practical training opportunity. 
DHS believes that the rule strikes the right balance between these two 
positions.
    The requirement that the practical training opportunity be directly 
related to the student's degree ensures that the opportunity is an 
extension of the student's academic studies and enhances the knowledge 
acquired during those studies. The purpose of the rule is not to give 
students unlimited employment opportunities. At the same time, the 
``directly related'' standard allows sufficient flexibility to give F-1 
students a range of options when choosing how to apply and enhance 
their acquired knowledge in work settings. DHS recognizes that the 
knowledge acquired when earning a STEM degree typically can be applied 
in a range of related fields, and the Department does not seek to 
narrow such options for students; rather, this rule requires that the 
practical training opportunity be directly related to the F-1 student's 
field of study. Limiting opportunities to the exact field of study as 
named on the degree would create an unnecessary and artificial 
distinction, resulting in fewer opportunities for STEM OPT students.
    DHS notes that the Training Plan required for a STEM OPT extension 
under this rule includes an entry for articulating how the practical 
training opportunity is directly related to the student's field of 
study. DHS will carefully consider this explanation, among other 
relevant evidence, when evaluating the relationship between the 
practical training opportunity and the student's degree.
    Comment. One commenter stated that STEM OPT extensions should be 
granted based on the needs of U.S. industries. Specifically, the 
commenter recommended that DHS make extensions available to F-1 
students who have earned degrees in fields that have a demonstrated 
need for workers, rather than to all fields on the STEM list.
    Response. The primary purpose of this rule is to expand upon the 
academic learning of F-1 students in STEM fields through practical 
training, not to supply STEM workers or address labor shortages. 
Moreover, as noted previously, the NSF has reviewed the body of 
research in this area and concluded that there is no straightforward 
answer on whether there is a surplus or shortage of STEM workers.\93\ 
Although it appears axiomatic that at any given time one industry may 
need workers more than another, the NSF has also found that labor needs 
in STEM fields are determined by factors other than industry, including 
level of education, training, and geographic location.\94\ Due to the 
complex set of factors that combine to affect the supply and demand of 
STEM workers, and the fact that labor needs are in constant flux, DHS 
has concluded that it would not be administratively feasible to limit 
STEM OPT extensions based on industry-specific needs that would be 
complex and difficult to ascertain objectively. DHS declines to adopt 
the suggestion by the commenter.
---------------------------------------------------------------------------

    \93\ See supra note 52.
    \94\ Id.
---------------------------------------------------------------------------

    Comment. Another comment suggested that because the DHS-approved 
STEM list is actually a list of major areas (i.e., fields) of study, 
DHS should amend the proposed definition for the type of STEM degree 
that would qualify a student for a STEM OPT extension to refer to 
``program categories'' instead of ``degree programs.'' The commenter 
added that the reference to ``program categories'' would be more 
consistent with other parts of the regulation that also use that term.
    Response. DHS agrees that the proposed definition could be 
confusing and has amended the regulatory text accordingly. The final 
rule now provides that the degree that is the basis for the STEM OPT 
extension must be a bachelor's, master's, or doctoral degree in ``a 
field'' determined by the Secretary, or his or her designee, to qualify 
within a science, technology, engineering, or mathematics field.
    Comment. Several commenters requested that the STEM OPT extension 
program be broadened to include non-STEM degrees. For example, one 
commenter remarked that it ``sometimes encounters individuals with 
excellent technical credentials whose decision to obtain an MBA or 
other non-STEM advanced degrees precludes them from continuing 
employment in the United States due to an inability to access STEM-
OPT.'' Other commenters similarly suggested that STEM OPT extensions be 
available to students with non-STEM degrees by citing to the changing 
nature of higher education and the need for increased experiential 
learning in other fields. One commenter suggested that DHS should 
create a process for expanding practical training opportunities for 
foreign students in non-STEM fields.
    Response. An expansion of practical training to non-STEM degrees 
would be outside the scope of this rulemaking. In 2015, there were more 
than 1.2 million international students studying in the United States, 
but only approximately 34,000 students on STEM OPT extensions. DHS did 
not propose to authorize an extension of OPT for the entire 
international student population, and will not authorize such an 
extension in this rule.

[[Page 13074]]

    Moreover, as noted in the proposed rule, DHS received similar 
comments in response to the 2008 IFR creating the 17-month extension 
for STEM graduates. DHS has taken these concerns into consideration in 
crafting this rule, and the Department determined that extending OPT is 
particularly appropriate for STEM students because of the specific 
nature of their studies and fields and the increasing need for 
enhancement of STEM skill application outside of the classroom. DHS 
also found, as noted previously, that unlike post-degree training in 
many non-STEM fields, training in STEM fields often involves multi-year 
research projects \95\ as well as multi-year grants from institutions 
such as the NSF. Although DHS recognizes that there may be some non-
STEM fields in which a student could benefit from increased practical 
training, the Department believes the current 12-month post-completion 
OPT period is generally sufficient for such fields. For these reasons, 
DHS is limiting the STEM OPT extension to STEM fields at this time.
---------------------------------------------------------------------------

    \95\ Many STEM OPT practical training opportunities are research 
related, as indicated by the fact that the employer that retains the 
most STEM OPT students is the University of California system and 
that two other universities are among the top six of such employers 
(Johns Hopkins University and Harvard University).
---------------------------------------------------------------------------

    Finally, DHS also notes that the rule does expand the availability 
of STEM OPT extensions to certain STEM students with advanced degrees 
in non-STEM fields. Under the rule, a student who earns a STEM degree 
and then goes on to earn a non-STEM advanced degree, such as a Master 
of Business Administration (MBA), may apply for a STEM OPT extension 
following the MBA so long as the practical training opportunity is 
directly related to the prior STEM degree.
ii. Definition of ``STEM Field'' and the STEM List
    Comment. Many commenters supported DHS's proposal to designate CIP 
codes in the STEM list at the two-digit level for the summary groups 
(or series) containing mathematics, natural sciences (including 
physical sciences and biological/agricultural sciences), engineering/
engineering technologies, and computer/information sciences. Commenters 
stated that this approach would provide important clarity to the 
public, as well as flexibility as STEM fields change.
    Many commenters emphasized the importance of also allowing STEM OPT 
extensions for certain students who studied in fields that are not 
classified within the proposed definition of ``STEM field.'' Some 
commenters stated that DHS should not base its definition of the term 
on the NCES definition alone.\96\ Commenters stated that the Department 
of Education originally developed this definition in order to define 
the scope of a study of educational trends related to students who 
pursue and complete STEM degrees. One commenter argued that repurposing 
this categorization for the STEM OPT extension would produce an 
unnecessarily narrow definition of ``STEM field'' for the STEM OPT 
extension.
---------------------------------------------------------------------------

    \96\ The NCES definition of ``STEM fields'' includes 
``mathematics; natural sciences (including physical sciences and 
biological/agricultural sciences); engineering/engineering 
technologies; and computer/information sciences.'' U.S. Department 
of Education, NCES, Institute of Education Sciences, ``Stats in 
Brief'' 2 (July 2009), available at http://nces.ed.gov/pubs2009/2009161.pdf.
---------------------------------------------------------------------------

    Similarly, another commenter advised that the NCES description of 
STEM fields ``is too narrow to capture graduate level STEM fields, 
especially those being pursued by students who obtained their 
baccalaureate-level education outside the United States, and who have 
come here for more specialized STEM education.'' Another commenter 
stated that the proposed rule's definition would ``create[] a static 
definition of STEM fields that fails to provide the flexibility to 
adapt to the latest innovations and discoveries in STEM.'' The 
commenter suggested that DHS clarify that it may add new CIP codes to 
the list beyond the summary groups specifically identified in the 
proposed regulatory text.\97\
---------------------------------------------------------------------------

    \97\ One comment suggested that DHS clarify how it will map CIP 
codes to each of the listed summary groups if it retains these 
summary groups because, according to the commenter, neither the NPRM 
nor the Department of Education document provide enough detail to 
compare the proposed list to the current list, or to provide 
feedback on the scope of the proposed change. Another commenter 
asked whether DHS intended to retain fields on the list if they fell 
outside of the summary groups for mathematics, natural sciences, 
engineering/engineering technologies, and computer/information 
sciences. As noted above, as part of the 2015 NPRM, DHS offered for 
public comment the then-current STEM Designated Degree Program List, 
and specifically identified which codes it was considering 
designating at the two-digit level.
---------------------------------------------------------------------------

    Another commenter stated that DHS's definition of ``STEM field'' 
differs from the NCES definition of the term in that DHS has included 
``related fields'' in its definition. The commenter believed that DHS's 
expanded definition would lead to requests for DHS to include in the 
new STEM list a number of fields that DHS had included in prior 
versions of the STEM list, but that did not fall within the summary 
groups that DHS identified in the NPRM (mathematics, natural sciences 
(including physical sciences and biological/agricultural sciences), 
engineering/engineering technologies, and computer/information 
sciences). To address this concern, the commenter suggested that DHS 
include an innovation or competitiveness-related criterion as a factor 
in selecting STEM fields for inclusion on the list.
    Response. DHS believes the NCES definition for ``STEM field'' 
provides a sound starting point for the definition of that term in this 
rule. First, the NCES definition draws on the Department of Education's 
expertise in the area of higher education. Second, the NCES definition 
identifies STEM fields using CIP terminology, which is widely used by 
U.S. institutions of higher education and provides a straightforward 
and objective measure by which DSOs and adjudicators can identify STEM 
fields of study. Consistent with the proposed rule, DHS has determined 
that four areas are core STEM fields and will list these four areas at 
the two-digit CIP code level. As a result, any new additions to those 
areas will automatically be included on the STEM list. These four areas 
are: Engineering (CIP code 14), Biological and Biomedical Sciences (CIP 
code 26), Mathematics and Statistics (CIP code 27), and Physical 
Sciences (CIP code 40).
    DHS also recognizes that some STEM fields of study may fall outside 
the summary groups (or series) identified in the NCES definition. As 
many commenters noted, the proposed rule defined ``STEM field'' to also 
include fields of study related to mathematics, natural sciences 
(including physical sciences, biological, and agricultural sciences), 
engineering and engineering technologies, and computer and information 
sciences. The ``related fields'' language in the STEM definition means 
that DHS may consider a degree to be in a STEM field even if not within 
the CIP two-digit series cited in the rule, and it authorizes DHS to 
designate CIP codes meeting the definition at the two-, four-, or six-
digit level. DHS believes that the clarification provided here, coupled 
with the STEM list itself, are sufficient to address any concern about 
qualifying STEM degrees and therefore declines to amend the regulatory 
text.
    DHS agrees, however, with comments suggesting that the ``related 
fields'' criterion alone may provide insufficient guidance and 
predictability to adjudicators and the public. Consistent with these 
commenters' suggestions and the basis of the STEM OPT extension, DHS 
has revised the regulatory text to clarify that in general, related 
fields will

[[Page 13075]]

include fields involving research, innovation, or development of new 
technologies using engineering, mathematics, computer science, or 
natural sciences (including physical, biological, and agricultural 
sciences). DHS intends to list any such ``related fields'' at the 6-
digit level.
    Comment. DHS received a number of comments related to the process 
for updating the STEM list. One commenter recommended that DHS publish 
a list and provide for notice and comment regarding any fields DHS 
intends to add or remove. Other commenters proposed that, in order to 
retain flexibility to adapt the definition of eligible STEM fields to 
an innovative economy, DHS should make additions to the list through 
publication of updates in the Federal Register but without providing 
for notice and comment. Another commenter asked DHS ``to create a 
system whereby applications to add fields to the STEM list can be made 
and acted upon quickly'' but that ``DHS provide a notice and comment 
period before eliminating specific fields from the STEM list.''
    Response. DHS agrees that the STEM list should be flexible and 
envisions making periodic updates to the STEM list in response to 
changes in STEM fields, academic programs, or technological trends. DHS 
will review recommendations from the public concerning potential 
additions or deletions to the list, and may announce changes through 
publication in the Federal Register. DHS intends to use a single 
procedure for amending the list and therefore disagrees with the 
commenter who recommended two different procedures for additions and 
deletions. Additionally, notice and comment publication for every 
change to the STEM list would hinder DHS's ability to be flexible and 
responsive to changes in STEM fields. DHS notes, however, that changes 
to the STEM list would be based on the regulatory definition of ``STEM 
field,'' which was subjected to notice and comment. In addition, DHS 
has provided a mechanism for continuous feedback on the degrees 
included on the list and encourages interested parties to suggest 
changes by sending their recommendations to SEVP@ice.dhs.gov. DHS 
believes this language and the process described provide sufficient 
clarity for the continued regulatory implementation of the STEM list.
    Comment. Many commenters requested that DHS include additional 
broad categories of degrees on the STEM list. For instance, some 
commenters requested that DHS include all science degrees. Others 
requested that DHS include ``certain essential fields in the health 
care and business sectors,'' without specifically identifying the 
specific fields they considered ``essential.'' A commenter recommended 
adding to the STEM list programs with CIP codes within the summary 
groups (or series) for Business Management, Marketing, and Related 
Support Services (CIP code 52) and Homeland Security, Law Enforcement, 
Firefighting and Related Protective Services (CIP code 43). Other 
commenters recommended specific degrees for DHS to include in the STEM 
OPT extension. These proposed fields of study covered a wide range of 
subjects including patient-care fields such as nursing and dental 
sciences, business administration, exercise sciences, neuroscience, 
pharmaceuticals, economics, accounting, and geography. Some commenters 
stated that ``financial engineering'' and ``quantitative finance'' 
(fields that are potentially encompassed within the CIP code for 
Financial Mathematics) should not be on the list of qualifying fields 
as many of those students work for financial institutions, and some 
degree programs in those fields might not focus heavily on quantitative 
skills.
    Response. DHS cannot fully respond to requests to include broad 
groups of degrees--such as degrees in certain ``essential'' health care 
and business fields--without an indication of the specific fields that 
are being suggested or a detailed explanation as to why those fields 
should be included on the list. Nevertheless, DHS declines to define 
``STEM field'' to generally include patient care and business fields of 
study. As noted above, these fields do not generally fall within the 
rubric of ``STEM fields.'' For similar reasons, DHS declines to add all 
CIP codes that begin with 52 and 43. DHS notes, however, that the final 
STEM list that DHS is adopting with this rulemaking includes four CIP 
codes beginning with 52: Management Science; Business Statistics; 
Actuarial Science; and Management Science and Quantitative Methods, 
Other. The final STEM list also includes two CIP codes beginning with 
43: Forensic Science and Technology, and Cyber/Computer Forensics and 
Counterterrorism.
    DHS notes that a number of the additional fields that commenters 
recommended for inclusion on the STEM list are included in the final 
list DHS is adopting with this rulemaking. These include Medical 
Technology (CIP code 51.1005), Health/Medical Physics (CIP code 
51.2205), Econometrics and Quantitative Economics (CIP code 45.0603), 
Exercise Physiology (CIP code 26.0908), Neuroscience (CIP code 
26.1501), Pharmacoeconomics/Pharmaceutical Economics (CIP code 
51.2007), Industrial and Physical Pharmacy and Cosmetic Sciences (CIP 
code 51.2009), Pharmaceutical Sciences (CIP code 51.2010),\98\ and 
Geographic Information Science and Cartography (CIP code 45.0702).
---------------------------------------------------------------------------

    \98\ DHS believes that those pharmacy-related CIP codes 
currently listed on the STEM list are in line with the STEM 
definition, whereas the recommendation of ``Pharmacy'' is too vague, 
and the other two recommendations, ``Pharmacy Administration'' and 
``Pharmacy Policy and Regulatory Affairs,'' fall outside the STEM 
definition.
---------------------------------------------------------------------------

    With respect to suggestions to include certain accounting degree 
programs, DHS notes that accounting is not generally recognized as a 
STEM field and does not involve research, innovation, or development of 
new technologies using engineering, mathematics, computer science, or 
natural sciences (including physical, biological, and agricultural 
sciences). DHS is thus not generally including accounting degrees on 
the STEM List. DHS also disagrees with the suggestion to prohibit 
eligibility based on ``financial engineering'' and ``quantitative 
finance'' degrees. Financial Mathematics is a very specialized field 
that involves utilizing traditional research methods and applying 
scientific principles and rigorous mathematical concepts (such as 
stochastic calculus). These underlying principles, and not the end 
employer, dictate the bases for including this field on the STEM list.
    Comment. Many commenters requested that DHS classify STEM CIP codes 
at the two-digit level to allow for more majors to qualify as bases for 
STEM OPT extensions. A commenter recommended that DHS consider 
identifying eligible CIP codes by the two-digit series of the CIP 
taxonomy, and that in cases where such series is too broad, DHS 
consider using the four-digit series, which ``represent intermediate 
groupings of programs that have comparable content and objectives.''
    Some commenters requested that DHS include additional categories of 
degrees on the STEM list. One commenter recommended that DHS designate 
at the two-digit level a number of potentially ``related fields,'' 
including Psychology (CIP code 42), Health professions and Related 
Programs (CIP code 51), Military Science, Leadership and Operational 
Art (CIP code 28), Military Technologies and Applied Sciences (CIP code 
29), and Agriculture, Agriculture Operations, and Related Sciences (CIP

[[Page 13076]]

code 1). The comment further recommended that DHS designate at the 
four-digit level ``relevant 4-digit codes'' from Architecture and 
Related Services (CIP code 04), Library Science (CIP code 25), Multi/
Interdisciplinary Studies (CIP code 30), Homeland Security, Law 
Enforcement, Firefighting and Related Protective Services (CIP code 
43), and Business, Management, Marketing, and Related Support Services 
(CIP code 52). The commenter stated that these changes would account 
for ``the increasingly multidisciplinary nature of education, the needs 
of the STEM pipeline and STEM industry infrastructure, and other 
technically-based areas of national interest.''
    Response. DHS believes that outside of the categories for which DHS 
proposed moving to a two-digit designation, designation at the two- or 
four-digit level may result in overbroad eligibility. DHS reviewed the 
additional groups of CIP codes that were recommended for designation at 
the two- and four-digit level, and found that significant additional 
research would be necessary to determine whether all of the covered 
fields are appropriately characterized as STEM fields for purposes of 
this rule. DHS welcomes further input on these designations and others 
within the standard process for providing input on the STEM list.
    Comment. DHS received a number of comments requesting that DHS 
explain whether the rule would effectively eliminate certain fields 
from the STEM list. Specifically, commenters were concerned that the 
following fields would be removed from the list: Architectural and 
Building Sciences/Technology (CIP code 4.0902), Digital Communication 
and Media/Multimedia (CIP code 9.0702), Animation, Interactive 
Technology, Video Graphics and Special Effects (CIP code 10.0304), 
Management Science (CIP code 52.1301), Business Statistics (CIP code 
52.1302), Actuarial Science (CIP code 52.1304), Management Science and 
Quantitative Methods, Other (CIP code 52.1399), Archaeology (CIP code 
45.0301), Econometrics and Quantitative Economics (CIP code 45.0603), 
Geographic Information Science and Cartography (CIP code 45.0702), and 
Aeronautics/Aviation/Aerospace Science and Technology, General (CIP 
code 49.0101).
    Response. DHS has retained these fields in the final version of the 
list. These fields continue to fit within DHS's criteria for covered 
degrees.
iii. Prior STEM Degrees--Application Process
    Comment. DHS received a substantial number of comments pertaining 
to provisions allowing students to use previously earned degrees to 
apply for STEM OPT extensions. Many commenters, particularly DSOs, 
supported the inclusion of previously earned degrees. Other DSOs 
submitted comments requesting clarification regarding the process for 
DSOs to nominate students for STEM OPT extensions based on such 
degrees. Some comments expressed concern about the increased 
responsibilities these provisions would place on DSOs. To reduce DSO 
recordkeeping burdens, a few commenters recommended that a previously 
earned degree be allowed to suffice for nomination only if the student 
obtained the degree at his or her current school. Other commenters 
asked DHS to clarify how DSOs would verify the accreditation of other 
institutions, while other commenters questioned how DSOs would verify 
previously earned degrees from other institutions.
    Some commenters stated that DSOs need clear guidance on how to 
determine whether a previously earned degree qualifies as a STEM degree 
sufficient to support a STEM OPT extension. Some commenters also stated 
that DSOs may have trouble verifying that a practical training 
opportunity is closely related to the student's prior field of study. 
Some commenters asked DHS to clarify whether the DSO at the school from 
which the student received his or her most recent degree would be the 
DSO responsible for verifying the Department of Education CIP codes 
used to classify the student's previously earned degree. Many 
commenters noted that for students with double majors or dual degrees, 
only the primary major's CIP code is visible on the Form I-20 
Certificate of Eligibility. Some commenters expressed an interest in 
displaying a CIP code history (i.e., a complete list of the student's 
earned degrees) in SEVIS for ease of reference and verification for 
students who are applying based on previously earned STEM degrees.
    Response. In response to commenters' concerns, DHS clarifies 
several requirements related to the use of previously earned degrees. 
First, a STEM OPT extension may be granted based on a previously earned 
degree if that degree is on the STEM list at the time of application 
for the STEM OPT extension, rather than at the time that the student 
received the degree. Second, the DSO at the school from which the 
student received his or her most recent degree (i.e., the DSO who 
recommended the student's current period of post-completion OPT) is the 
DSO responsible for verifying the CIP code(s) used to classify the 
student's previously earned degree. Finally, the institution that 
conferred the prior degree must be accredited and SEVP-certified at the 
time the DSO recommends the student for the STEM OPT extension.
    Thus, prior to approving a student's STEM OPT extension based on a 
previously earned degree, the DSO must ensure that the student is 
eligible for the extension based on the degree, which includes 
verifying that the degree is on the current STEM list, that the degree 
directly relates to the practical training opportunity, and that the 
degree was issued by an institution that is currently accredited and 
SEVP-certified. DHS acknowledges that such verification may place an 
additional burden on DSOs. But DHS expects this burden will be minimal, 
as the required information should be readily accessible in most cases.
    With respect to verifying previously earned degrees, DHS notes that 
many institutions already require information about such degrees from 
incoming students. As such, the certification required by this rule is 
consistent with an academic institution's normal review of its 
students' prior accomplishments. Additionally, for the majority of 
degrees granted in the past 10 years, recent and upcoming improvements 
to SEVIS may provide additional assistance to DSOs. CIP codes began 
appearing in SEVIS in 2008 and on Form I-20 Certificates of Eligibility 
in 2009, and in the December 2015 SEVIS upgrade, SEVP improved the 
student history section for DSO reference.\99\ DHS is working toward an 
even more robust student history section. Based on these improvements, 
a significant amount of information related to previously earned 
degrees will be included in the SEVIS system and immediately available 
to DSOs. The Department also commits to providing additional training 
through SEVP to facilitate DSOs' ability to perform this work in an 
efficient manner.
---------------------------------------------------------------------------

    \99\ DHS will provide specific training and guidance related to 
this and other issues following publication of this rule and further 
SEVIS upgrades.
---------------------------------------------------------------------------

    With respect to determining whether a previously earned degree is 
in a STEM field, DHS notes that DSOs will only be required to determine 
whether the degree is on the current STEM list (i.e., the list in 
effect at the time of the application for a STEM OPT extension), not 
the list in effect at the time that the degree was conferred. DSOs will 
not be required to review historical STEM lists.

[[Page 13077]]

As such, DHS expects that verification of a previously earned degree in 
this regard will be no more burdensome than that required of a 
recently-earned STEM degree.
    Similarly, with respect to the institution that conferred the prior 
degree, the rule does not require the DSO to verify whether the 
institution was accredited or SEVP-certified at the time the degree was 
conferred. The rule requires the DSO to determine only whether that 
institution is currently accredited and SEVP-certified. Regarding the 
accreditation requirement, the DSO may simply consult the Department of 
Education's Database of Accredited Postsecondary Institutions and 
Programs, or any other reasonable resource used by DSOs, to verify the 
institution's accreditation. Regarding SEVP-certification, the DSO may 
search the Certified Schools list available at https://studyinthestates.dhs.gov/school-search, to see if a student's 
educational institution is on the list at the time the DSO determines 
whether to make the recommendation.
    Additionally, DHS understands the concerns raised by DSOs regarding 
students with double majors or dual degrees. DHS clarifies that in 
scenarios where a student has simultaneously earned a degree with a 
double major, or more than one degree, the DSO should first attempt to 
confirm eligibility through SEVIS data. If the DSO is unable to do so, 
the DSO may then consult the student's academic file at the DSO's own 
institution to review whether the qualifying STEM degree was listed on 
the student's application for admission. The DSO's educational 
institution either would already have access to that information or 
could request documentation from the student. For further clarity, DHS 
has amended the regulatory text at 8 CFR 214.2(f)(10)(ii)(C) in this 
final rule to include a specific reference to dual degrees.
    Finally, although DHS shares commenters' goals of minimizing 
administrative burdens on DSOs and their institutions, the Department 
disagrees with the recommendation to allow STEM OPT extensions based on 
previously earned degrees only if such degrees are obtained from the 
students' current educational institutions. This restriction would 
severely limit educational options for F-1 students, as it would 
effectively require those who may wish to engage in extended practical 
training to pursue advanced degrees at the same institutions in which 
they had earned their prior degree(s). Indeed, the limitation may even 
create disincentives to attend smaller colleges or other institutions 
that may not provide as many degree programs as larger universities. 
And it would disqualify students based on nothing more than their 
decision to switch institutions. Curtailing F-1 students' options with 
respect to educational institutions in the United States is 
inconsistent with the rule's objectives. Furthermore, as noted 
previously, DHS has considered the suggestion to shift the rule's 
recordkeeping and reporting obligations to students and employers and 
is currently developing technological capabilities aimed at reducing 
administrative burdens on DSOs, employers, and students.
    Comment. DHS received comments seeking clarification on the 
specific types of information needed by DSOs to approve STEM OPT 
extensions based on previously earned STEM degrees. One commenter, for 
example, asked whether DSOs would need to provide SEVIS printouts when 
the necessary CIP codes do not appear on the Form I-20 Certificate of 
Eligibility but are found in SEVIS. The commenter also asked for 
information regarding the types of ``authoritative evidence . . . 
regarding changes in CIP codes'' that DSOs from prior institutions may 
provide ``so that the STEM OPT-granting DSO has confidence that they 
are appropriately authorizing STEM OPT.''
    Response. DHS continues to upgrade the SEVIS system to bring clear, 
specific, and easily-accessible information to users. As the system 
evolves, DHS expects to update guidance concerning methods for 
acquiring and confirming CIP codes, and to provide specific training 
and guidance relating to these questions. DHS clarifies, however, that 
the Department will not generally require DSOs to provide SEVIS 
printouts, as SEVIS information is already available to DHS. For 
previously earned degrees, DSOs should provide, if it is available, the 
CIP code applicable at the time the degree was conferred. CIP codes are 
currently republished every ten years, and immediately prior versions 
remain available electronically through the National Center for 
Education Statistics Web site, with a crosswalk that connects any 
changes between current and prior versions.\100\ DHS will take all 
circumstances into account when adjudicating the application and may 
ask for additional information as needed.
---------------------------------------------------------------------------

    \100\ See U.S. Department of Education, National Center for 
Education Statistics, Classification of Instructional Programs (CIP) 
2010, available at http://nces.ed.gov/ipeds/cipcode/crosswalk.aspx?y=55.
---------------------------------------------------------------------------

iv. Previously Earned STEM Degrees--Eligibility Requirements
    Comment. DHS received a number of comments applauding DHS's 
proposal to allow students to qualify for STEM OPT extensions based on 
previously earned STEM degrees. Some employers stated that this change 
will be especially helpful in retaining scientists who obtain higher-
level degrees in public health fields, as well as engineers and 
scientists who pursue MBA and other advanced business degrees after 
receiving a STEM degree. Other commenters, however, expressed concern 
with the proposal. One commenter, for example, asserted that students 
who have ``abandoned'' their previous STEM degrees to study in another 
non-STEM field should not be allowed to obtain STEM OPT extensions. 
Another commenter stated that it was not clear from the regulatory text 
that an extension would be allowed ``only to such students who seek to 
develop and utilize STEM skills from their prior STEM degree during the 
extended OPT period.''
    Response. DHS agrees with comments stating that the provision 
related to prior STEM degrees provides important educational and 
training benefits to accomplished students with STEM backgrounds. DHS 
acknowledges the benefits of combining STEM and non-STEM disciplines, 
as recognized by the majority of commenters who commented on this 
specific issue. DHS also disagrees with the notion that STEM students 
who subsequently pursue non-STEM degrees have ``abandoned'' their STEM 
degrees. It is not uncommon for STEM degrees to provide a foundation 
for career advancement in fields where multi-disciplinary backgrounds 
can be advantageous.\101\ Moreover, as stated previously, the rule 
requires that any practical training during the STEM OPT extension 
period must be ``directly related'' to the STEM degree. This 
requirement applies with equal force to

[[Page 13078]]

any such practical training based on a prior STEM degree.
---------------------------------------------------------------------------

    \101\ As the National Science Foundation explained in its 2015 
report entitled, ``Revisiting The STEM Workforce: A Companion to 
Science and Engineering Indicators 2014,'' the education-to-
occupation pathways in STEM fields are not always linear, and 
individuals who earn multiple degrees, such as a ``STEM-educated 
lawyer or an individual with both a STEM degree and a Master of 
Business Administration degree can add unique value in a number of 
work settings.'' National Science Foundation, Revisiting the STEM 
Workforce: A Companion to Science and Engineering Indicators 2014 at 
12 (Feb. 4, 2015), http://www.nsf.gov/nsb/publications/2015/nsb201510.pdf.
---------------------------------------------------------------------------

    Comment. One commenter requested clarification on when the 10-year 
``clock'' starts for determining eligibility for STEM OPT extensions 
based on previously earned STEM degrees. The commenter requested that 
the final rule should clarify whether the 10-year period begins on the 
date of graduation listed on the diploma or the date on which all 
degree requirements were completed. Additionally, the commenter 
requested that DHS clarify the meaning of the term ``application date'' 
with respect to applications for STEM OPT extensions.
    Response. DHS clarifies that the 10-year eligibility period for 
previously earned STEM degrees is determined from the date the degree 
was conferred, which would be the date on which the degree was earned 
or finalized, as reflected on the official transcript. For purposes of 
this rule, the application date is the date on which the DSO recommends 
the STEM OPT extension in SEVIS.
    Comment. Commenters also submitted comments requesting that the 
proposed 10-year period for accepting previously earned STEM degrees be 
shortened. Such commenters asserted that the 10-year period is too long 
for various reasons, including because degree programs, as well as the 
STEM list, change over time. Some commenters also stated that students 
with older degrees would not be knowledgeable on current topics and 
research methods and would thus have to spend a greater portion of the 
STEM OPT extension learning new information rather than applying 
previously obtained knowledge.
    Response. DHS agrees with commenters that a previously earned STEM 
degree should not be a basis for a STEM OPT extension if the degree was 
awarded in the distant past. DHS, however, believes that 10 years is a 
reasonable period for recognizing prior STEM degrees under this rule. 
DHS disagrees that students who earned STEM degrees in the last 10 
years are necessarily behind peers who have earned their degrees more 
recently. A student in a STEM field that has changed since the student 
received his or her degree may very well have kept up with the state of 
knowledge in his or her field through employment, training, or other 
means.
    Moreover, DHS notes that employers are likely to provide practical 
training opportunities to candidates who are qualified based upon their 
individual degrees and knowledge. As noted previously, this rule 
provides that when a STEM OPT extension is based on a previously earned 
STEM degree, the practical training opportunity must be directly 
related to that previous degree. Based in part on this requirement, DHS 
expects that an employer will accept an F-1 student that the employer 
believes is qualified and prepared to engage in the offered position. 
While the pool of qualified STEM OPT candidates based on prior STEM 
degrees earned in the United States up to 10 years ago may be small, 
DHS believes the provision is an important feature of the final rule.
    Comment. Commenters stated that the proposed rule did not address 
whether an F-1 student who earned a prior STEM degree in the United 
States while in another nonimmigrant status would qualify for STEM OPT 
extensions under this rule. In some cases, the commenters specifically 
recommended that DHS clarify that a current F-1 student who obtained a 
prior STEM degree in the United States while in H-4, L-2, or another 
nonimmigrant status would be eligible for a STEM OPT extension.
    Response. DHS generally agrees with these comments and clarifies 
here that a current F-1 student who earned a prior STEM degree from a 
qualifying educational institution, regardless of whether he or she 
earned that prior degree as an F-1 student, may qualify for a STEM OPT 
extension so long as the degree otherwise meets the requirements for 
previously earned STEM degrees set out in this rule.
    Comment. A number of commenters requested that the regulations 
explicitly provide that a student who completes a double major or 
obtains dual degrees--with one major or degree in a STEM field and the 
other not in a STEM field--would be eligible for a STEM OPT extension.
    Response. DHS supports allowing students who previously graduated 
with dual degrees to participate in the STEM OPT extension so long as 
one of the prior degrees is an eligible STEM degree. In response to the 
comments received on this issue, DHS has made changes to the proposed 
regulatory text. The final rule now includes a specific reference to 
dual degrees in the regulatory text at 8 CFR 214.2(f)(10)(ii)(C).
    Comment. One commenter requested certain clarifications to the 
proposal to allow students to use a previously earned STEM degree as a 
basis for a STEM OPT extension. Specifically, the commenter requested 
that DHS clarify that the proposal would allow STEM OPT extensions for 
the following students:
    1. A student who completes a STEM degree and then subsequently 
completes a non-STEM degree;
    2. A student who earns a non-STEM degree after previously 
completing a double major or receiving dual degrees, where one major or 
degree was in a STEM field and the other was not; and
    3. A student who, while on post-completion OPT for a non-STEM 
degree, completes a STEM degree (e.g., the student was concurrently 
enrolled in two degree programs, and finishes the non-STEM program 
first, obtains post-completion OPT on the completed non-STEM program, 
then subsequently completes the STEM program while on OPT).
    To further clarify this proposal, the commenter suggested that DHS 
delete the words ``previously'' and ``previous'' in proposed 8 CFR 
214.2(f)(10)(ii)(C)(3), amend the section with suggested language, and 
issue guidance to assist DSOs responsible for facilitating STEM OPT 
extensions on the basis of degrees from other institutions.
    Response. DHS clarifies that the students in the first two 
scenarios described above would be able to request and obtain STEM OPT 
extensions if they are in compliance with all other OPT requirements, 
including that the practical training opportunity is directly related 
to the STEM degree. For the student in the third scenario, however, 
eligibility may depend upon the degree level of the student's STEM 
degree. In the commenter's description, the STEM degree was earned 
after the initiation of the student's current OPT period. Because the 
rule limits eligibility for STEM OPT extensions in this context to 
those degrees obtained ``previous to the degree that provided the [12-
month OPT period],'' the subsequently earned degree would not qualify 
the student for an extension of his or her current OPT period. While 
the student would be unable to directly request a STEM OPT extension 
based on the new STEM degree, such a student may be able to start a new 
12-month period of OPT based on that degree if the degree is of a more 
advanced level than the non-STEM degree. If the commenter's scenario, 
however, involved a student receiving two degrees at the same level 
(e.g., both degrees are bachelor's degrees), the student could not 
start a new 12-month period of OPT based on the STEM degree.
    DHS considered making adjustments to the rule to allow STEM OPT 
extensions for all students described in the third scenario, but the 
Department decided against making such changes after weighing several 
factors. First,

[[Page 13079]]

DHS does not believe that the situation described in the third scenario 
is very common. Second, future students who find themselves in that 
scenario can preserve eligibility for STEM OPT extensions simply by 
waiting to request post-completion OPT until after completing the 
coursework toward their STEM degrees. Based on the small number of 
students impacted and the relative ease with which such students can 
retain STEM OPT eligibility, DHS concluded that the benefit to such 
students was outweighed by the administrative complexity presented in 
allowing STEM OPT extensions based on subsequently earned STEM degrees 
awarded at the same degree level. For these reasons, DHS has not agreed 
to make the changes recommended by the commenter. DHS will address any 
remaining confusion through training and guidance.
v. Volunteering, Employer-Employee Relationships, and Related Matters
    DHS received several comments concerning various types of practical 
training scenarios and whether they qualify under the STEM OPT 
extension provisions of this rule. For the reasons described below, DHS 
has determined that as a result of the rule's general requirements, a 
student seeking a STEM OPT extension will not be allowed to use a 
volunteer opportunity as a basis for a STEM OPT extension. In addition, 
a STEM OPT extension must involve a bona fide employer-employee 
relationship. Finally, DHS clarifies that under this final rule 
students may seek practical training opportunities with start-up 
businesses, so long as all regulatory requirements are met. Such 
students may not provide employer attestations on their own behalf.
    Comment. Some commenters requested that F-1 students be allowed to 
gain practical training as volunteers during their STEM OPT extensions. 
Relatedly, a commenter asked DHS ``to carve out a limited exception to 
allow volunteering at the student's academic institution to qualify as 
`employment' for purposes of maintaining F-1 status.''
    Response. DHS carefully considered whether to allow volunteer 
positions to qualify under the STEM OPT extension program but has 
decided against permitting such arrangements. Among other things, DHS 
is concerned that allowing volunteering would increase the potential 
for abuse on the part of international students who may accept 
volunteer positions for no reason other than a desire to extend their 
time in the United States. DHS is also concerned that allowing 
volunteering positions could undermine the protections for U.S. workers 
contained in the rule, including the requirement that F-1 students on 
STEM OPT extensions receive compensation commensurate to that provided 
to similarly situated U.S. workers. Similarly, disallowing volunteering 
avoids potentially negative impacts on U.S. students who may otherwise 
be denied paying research opportunities because universities, 
professors, or other employers would be able to retain F-1 student(s) 
for extended periods as volunteers. Requiring commensurate compensation 
for F-1 students--which does not include no compensation--protects both 
international and domestic students and ensures that the qualifying 
STEM positions are substantive opportunities that will equip students 
with a more comprehensive understanding of their selected areas of 
study and provide broader functionality within their chosen fields.
    Comment. DHS received several comments concerning various types of 
employment relationships and whether F-1 students could request STEM 
OPT extensions based on such relationships. For example, commenters 
suggested that an F-1 student be allowed to obtain a STEM OPT extension 
based on a business established and staffed solely by the student. 
Commenters stated that such a change would allow students to remain in 
the United States to start their own companies, while also improving 
their ability to directly benefit from their own innovations. Other 
commenters suggested that DHS allow STEM OPT students to engage in 
employment with more than two employers and be employed through a 
temporary agency or a consulting firm arrangement that provides labor 
for hire. A commenter asked DHS to clarify its position relating to 
placement agencies, asserting that there may be some legitimate 
situations in which a staffing company that supervises STEM students 
should not be prohibited from participating in the STEM OPT extension. 
In addition, a commenter suggested that DHS expand the definition of 
``supervisor'' to include advisory board members of venture capital 
firms, faculty advisors, and ``start-up mentors.'' The commenter stated 
that many start-up companies are not able to offer salaries before they 
become profitable (instead offering compensation plans that might 
include stock options or alternative benefits), and recommended that 
DHS allow STEM OPT students to work for such companies.
    Response. There are several aspects of the STEM OPT extension that 
do not make it apt for certain types of arrangements, including 
multiple employer arrangements, sole proprietorships, employment 
through ``temp'' agencies, employment through consulting firm 
arrangements that provide labor for hire, and other relationships that 
do not constitute a bona fide employer-employee relationship. One 
concern arises from the difficulty individuals employed through such 
arrangements would face in complying with, among other things, the 
training plan requirements of this rule. Another concern is the 
potential for visa fraud arising from such arrangements. Furthermore, 
evaluating the merits of such arrangements would be difficult and 
create additional burdens for DSOs. Accordingly, DHS clarifies that 
students cannot qualify for STEM OPT extensions unless they will be 
bona fide employees of the employer signing the Training Plan, and the 
employer that signs the Training Plan must be the same entity that 
employs the student and provides the practical training experience. DHS 
recognizes that this outcome is a departure from SEVP's April 23, 2010 
Policy Guidance (1004-03).
    DHS, moreover, anticipates that it will be very unusual, though not 
expressly prohibited, for students to work with more than two employers 
at the same time during the STEM OPT extension period, given that each 
employer must fully comply with the requirements of this rule and 
employ the student for no less than 20 hours per week.
    DHS also clarifies that F-1 students seeking STEM OPT extensions 
may be employed by new ``start-up'' businesses so long as all 
regulatory requirements are met, including that the employer adheres to 
the training plan requirements, remains in good standing with E-Verify, 
will provide compensation to the STEM OPT student commensurate to that 
provided to similarly situated U.S. workers, and has the resources to 
comply with the proposed training plan. For instance, alternative 
compensation may be allowed during a STEM OPT extension as long as the 
F-1 student can show that he or she is a bona fide employee and that 
his or her compensation, including any ownership interest in the 
employer entity (such as stock options), is commensurate with the 
compensation provided to other similarly situated U.S. workers.
vi. Thesis Requirement
    Comment. One commenter asked for clarification about a possible 
contradiction between USCIS and SEVP policies. Specifically, the 
commenter stated that on October 6, 2013, USCIS

[[Page 13080]]

issued an interim policy memorandum (PM 602-0090) that clarified that 
an F-1 student engaging in post-completion OPT is eligible for a STEM 
OPT extension if the student has completed all course requirements, 
except for the thesis, dissertation, or equivalent requirement, when 
applying for the extension.\102\ The commenter noted that SEVP had not 
yet provided a written update consistent with this USCIS policy 
memorandum, but instead had previously issued guidance indicating that 
before a DSO could recommend a STEM OPT extension, the DSO needed to 
ensure that the student had already finished his or her thesis. Another 
commenter asked DHS to clarify whether the completion of a STEM degree 
is a requirement before a student can apply for a STEM OPT extension, 
as the proposed rule referenced the ``completion'' of a degree.
---------------------------------------------------------------------------

    \102\ USCIS Policy Memorandum PM-602-0090, 17-Month Extension of 
Post-Completion Optional Practical Training (OPT) for F-1 Students 
Enrolled in Science, Technology, Engineering, and Mathematics (STEM) 
Degree Programs, available at http://www.uscis.gov/sites/default/files/files/nativedocuments/OPT_STEM.pdf.
---------------------------------------------------------------------------

    Response. DHS clarifies that an F-1 student engaging in a 12-month 
period of post-completion OPT based on the completion of coursework 
toward a STEM degree is eligible for a STEM OPT extension based on that 
same degree if the only outstanding requirement for obtaining the 
degree at the time of application is the completion of a thesis (or 
equivalent). As USCIS noted in the cited policy memorandum, because the 
STEM OPT extension is an extension of a previously granted period of 
post-completion OPT, it is logical to conclude that students who are 
applying for the STEM OPT extension need not necessarily have completed 
their STEM degree thesis requirement (or equivalent) in order to be 
eligible for the extension. DHS believes that this policy serves the 
nation's interest in attracting and retaining talented STEM students 
from around the world.
    This option, however, is not applicable to a request for a STEM OPT 
extension based on a previously obtained STEM degree; in such a case, 
the prior STEM degree must be fully conferred. The provision on 
previously obtained degrees requires that the student must have 
received the degree itself within 10 years preceding his or her STEM 
OPT application date. In order to have received the degree, the student 
would have needed to complete his or her thesis (or equivalent), if 
such a requirement pertains to the degree. Moreover, DHS does not 
believe it would be necessary or appropriate to excuse the thesis 
requirement for previously earned STEM degrees. Importantly, the option 
to use a previously earned STEM degree as the basis for a STEM OPT 
extension is for students who are participating in a 12-month period of 
OPT based on the completion of coursework toward a non-STEM degree at a 
higher educational level. Because such students have been admitted to 
degree programs at a higher educational level, DHS anticipates that 
such students would have already received their lower-level STEM 
degrees. Moreover, because the rule allows previously earned STEM 
degrees to qualify if they were conferred up to 10 years ago, DHS 
believes the need for conferral of the degree would further ensure the 
integrity of the program and reduce the possibility of fraud.
    Finally, DHS does not agree that there are contradictions between 
the USCIS policy memorandum and the ICE guidance cited in the comments. 
The USCIS policy memorandum is consistent with the position taken by 
SEVP in the ICE Policy Guidance (1004-03) with respect to the 
completion of a thesis (or equivalent). For example, section 6.7 of the 
ICE policy guidance states that a student in a graduate-level program 
who has completed all course requirements except for completion of the 
thesis (or equivalent) may apply for either pre-completion or post-
completion OPT while completing the thesis. A student in this situation 
who applies for and receives post-completion OPT may work full-time in 
a field related to his or her degree; may apply for the STEM OPT 
extension if otherwise eligible; and would be eligible for the Cap-Gap 
extension.\103\ As noted above, however, such a student would be 
eligible for a STEM OPT extension only if that extension is based on 
the same STEM degree that is the basis for the student's current 12-
month period of OPT. A student who is on a 12-month period of OPT based 
on a non-STEM degree and who seeks a STEM OPT extension based on a 
previously earned STEM degree must have completed all requirements for 
conferral of the STEM degree--including any applicable thesis 
requirement (or equivalent).
---------------------------------------------------------------------------

    \103\ See www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_042010.pdf.
---------------------------------------------------------------------------

D. Qualifying Employers

1. Description of Final Rule and Changes From NPRM
    The final rule imposes certain additional requirements on employers 
as a condition of employing STEM OPT students. This rule requires all 
such employers to participate in E-Verify and to make a number of 
attestations intended to better ensure the educational benefit of STEM 
OPT extensions and the protection of U.S. workers. The proposed rule 
included these provisions, and the final rule retains them with certain 
changes and clarifications in response to public comments. We summarize 
these provisions and changes below.
i. Employer Enrollment in E-Verify Required
    This final rule requires all employers training STEM OPT students 
to participate in E-Verify, as has been required since 2008. E-Verify 
electronically compares information contained on Form I-9, Employment 
Eligibility Verification, with records contained in government 
databases to help employers confirm the identity and employment 
eligibility of newly-hired employees. DHS includes this requirement 
because E-Verify is a well-established and important measure that 
complements other oversight elements in the rule, and because it 
represents an efficient means for employers to determine the employment 
eligibility of new hires, including students who have received STEM OPT 
extensions.
ii. Use of E-Verify Company ID Number
    DHS adopts the regulation as proposed with regard to E-Verify, but 
has modified Form I-983, Training Plan for STEM OPT Students, so that 
it will not require the insertion of an employer's E-Verify Company 
Identification number (E-Verify ID number). DHS makes this change in 
response to comments that raised concerns regarding the potential for 
fraud that may arise from requiring this number on a form accessible by 
other program participants, including students and DSOs.
iii. Employer Attestations
    As noted in further detail below (see section IV.F. of this 
preamble, Training Plan for F-1 Nonimmigrants on a STEM OPT Extension), 
the rule requires the student and employer to complete Form I-983, 
Training Plan for STEM OPT Students. Given DHS' recognition of the need 
to protect U.S. workers from possible employer abuses of the STEM OPT 
extension, the Training Plan contains terms and conditions for employer 
participation aimed at providing such protection. For instance, under 
the rule, any employer wishing to hire a student participating in the 
STEM OPT extension must attest that, among other things: (1) The 
employer has sufficient resources and personnel

[[Page 13081]]

available to provide appropriate training in connection with the 
specified opportunity; (2) the STEM OPT student will not replace a 
full- or part-time, temporary or permanent U.S. worker; and (3) the 
opportunity assists the student in attaining his or her training goals. 
As described below, DHS has revised the second of these attestations in 
response to public comments. DHS believes that the revised language is 
clearer and better protects U.S. workers.
    Finally, consistent with the proposed rule, the final rule requires 
that the terms and conditions of an employer's STEM practical training 
opportunity--including duties, hours and compensation--be commensurate 
with those provided to the employer's similarly situated U.S. workers. 
Work duties must be designed to assist the student with continued 
learning and be set at a minimum of 20 hours per week. If the employer 
does not employ and has not recently employed more than two similarly 
situated U.S. workers, the employer must instead ensure that the terms 
and conditions of a STEM practical training opportunity are 
commensurate with those for similarly situated U.S. workers employed by 
other employers of analogous size and industry and in the same 
geographic area of employment. The term ``similarly situated U.S. 
workers'' includes U.S. workers performing similar duties and with 
similar educational backgrounds, employment experience, levels of 
responsibility, and skill sets as the STEM OPT student. The student's 
compensation must be reported on the Training Plan, and the student and 
employer will be responsible for reporting any change in compensation 
to help the Department monitor whether STEM OPT students are being 
compensated fairly. The employer must affirm that all attestations 
contained in the Training Plan are true and correct to the best of the 
employer's knowledge, information and belief.
2. Public Comments and Responses
i. Employer Enrollment in E-Verify Required
    Comment. Many commenters expressed support for requiring employers 
of F-1 students with STEM OPT extensions to participate in E-Verify as 
proposed. Several commenters stated that the E-Verify requirement is an 
effective way to protect against employment of unauthorized 
individuals. They observed that E-Verify provides the best means 
available for employers to confirm employment eligibility of new hires 
and, in some cases, existing employees. Comments also reported that E-
Verify is easy to use and clearly lays out the consequences of 
violations, while helping avoid hiring abuses.
    Some commenters noted that employers would be less likely to use E-
Verify unless such use was required. Other commenters stated that the 
extra burden and expense placed on employers by the E-Verify 
requirement helps protect U.S. workers by providing an incentive for 
employers to hire U.S. citizens over international students. Other 
commenters criticized the E-Verify requirement on the grounds that it 
also created a burden for students by limiting where they could receive 
work-based training. Some commenters noted that employers are willing 
to incur E-Verify-related burdens because they believe that an F-1 
student may be their only candidate for the specific job.
    Response. DHS agrees with commenters that support the E-Verify 
enrollment requirement, including because E-Verify contains important 
protections for U.S. and other workers. Before an employer can 
participate in E-Verify, the employer must enter into a Memorandum of 
Understanding (MOU) with DHS. This MOU requires that employers follow 
required procedures in the E-Verify process to ensure maximum 
reliability and ease of use with the system, while preventing 
unauthorized disclosure of personal information and unlawful 
discriminatory practices based on national origin or citizenship 
status. In particular, the employer agrees not to use E-Verify for pre-
employment screening of job applicants or in support of any unlawful 
employment practice.\104\ The employer further agrees to comply with 
Title VII of the Civil Rights Act of 1964 and section 274B of the INA, 
8 U.S.C. 1324b, by not discriminating unlawfully against any individual 
in hiring, firing, employment eligibility verification, or recruitment 
or referral practices because of his or her national origin or 
citizenship status, or by committing discriminatory documentary 
practices. Illegal practices can include selective verification, 
improper use of E-Verify, or discharging or refusing to hire employees 
because they appear or sound ``foreign'' or have received tentative 
nonconfirmations.
---------------------------------------------------------------------------

    \104\ See U.S. Citizenship and Immigration Services, The E-
Verify Memorandum of Understanding for Employers, available at 
http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/MOU_for_E-Verify_Employer.pdf.
---------------------------------------------------------------------------

    The MOU also makes clear that USCIS may suspend or terminate an 
employer's access to E-Verify if the employer violates Title VII or 
section 274B of the INA, 8 U.S.C. 1324b, fails to follow required 
verification procedures, or otherwise fails to comply with E-Verify 
requirements. Any employer who violates the immigration-related unfair 
employment practices provisions in section 274B of the INA could face 
civil penalties, including back pay awards. Employers who violate Title 
VII face potential back pay awards, as well as compensatory and 
punitive damages. Under the MOU, employers who violate either section 
274B of the INA or Title VII may have their participation in E-Verify 
terminated. DHS may also immediately suspend or terminate the MOU, and 
thereby the employer's participation in E-Verify, if DHS or the Social 
Security Administration determines that the employer failed to comply 
with established E-Verify procedures or requirements.
    DHS disagrees with comments asserting that E-Verify will impose 
significant burdens or costs on employers or students.\105\ First, E-
Verify does not require a fee for its use. Second, the E-Verify 
requirement remains unchanged since it was first established in the 
2008 IFR, and DHS is not aware of significant burdens or costs on 
employers that have participated in the STEM OPT extension program 
since that time. In fact, while in 2008 there were just over 88,000 
employers enrolled in E-Verify, there are now more than 602,000 
enrolled employers.\106\ Third, E-Verify is fast and accurate, with 
98.8 percent of employees automatically confirmed as authorized to work 
either instantly or within 24 hours.\107\ Finally, E-Verify is one of 
the federal government's highest-rated services for customer 
satisfaction as measured by employer surveys,\108\ and DHS

[[Page 13082]]

continually looks for ways to improve and enhance the system.
---------------------------------------------------------------------------

    \105\ When DHS studied E-Verify costs, 76% of responding 
employers stated that the cost of using E-Verify was zero ($0). See 
Westat study evaluating E-Verify, ``Findings of the E-Verify Program 
Evaluation'' at 184 (Dec. 2009). Available at http://www.uscis.gov/sites/default/files/USCIS/E-Verify/E-Verify/Final%20E-Verify%20Report%2012-16-09_2.pdf.
    \106\ USCIS, History and Milestones, https://www.uscis.gov/e-verify/about-program/history-and-milestones.
    \107\ USCIS, E-Verify Program Statistics: Performance, http://www.uscis.gov/e-verify/about-program/performance.
    \108\ Since 2011, USCIS has collected information through E-
Verify surveys, which reflect high rates of customer satisfaction by 
employers. For example, the employer 2014 Customer Satisfaction 
Index of USCIS E-Verify rose one point from 2013 for a score 87 (on 
a scale from 1-100) for all and existing users, and 86 for new 
enrollees. Moreover, since 2010, employer users have been highly 
satisfied with E-Verify and the E-Verify CSI number has never scored 
below the low 80s. See The E-Verify Customer Satisfaction Survey, 
July 2015 available at http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/E-Verify_Annual_Customer_Satisfaction_Survey_2015.pdf.
---------------------------------------------------------------------------

    Comment. Commenters also supported the E-Verify requirement because 
its increased use further maximizes the reliability and ease of use of 
the system, while preventing the unauthorized disclosure of personal 
information and unlawful discriminatory practices based on national 
origin or citizenship status. Many commenters stated that when using E-
Verify pursuant to program requirements, an applicant's citizenship is 
less likely to be disclosed to employers, and E-Verify employers are 
more likely to provide the same job opportunities, wages, and benefits 
to employees. Some commenters stated that E-Verify helps ensure that 
employers will recruit applicants to meet their needs without 
negatively affecting the employment of U.S. workers. They added that 
these requirements thus ensure the integrity of the STEM OPT 
extension.\109\
---------------------------------------------------------------------------

    \109\ Additionally, one commenter supported the regulation 
generally, but expressed a misunderstanding about the process and 
the E-Verify program, writing that the ``Government will check that 
if the company really need [sic] those F1 students or not and decide 
to give them E-verify or not.'' DHS notes that a need-based check is 
not part of the E-Verify enrollment or participation process.
---------------------------------------------------------------------------

    Response. DHS agrees with comments supporting the E-Verify 
requirement, including because E-Verify protects against the 
unauthorized disclosure of personal information. E-Verify has 
implemented an extensive set of technical, operational and physical 
security controls to ensure the confidentiality of an individual's 
information. Those controls include user-specific accounts and complex 
passwords that must be changed often to access the system; user 
accounts that are locked after several failed attempts to log on; 
active session timeouts within the E-Verify interface; data encryption 
during all data transmissions between the employer's workstation and 
the system; and procedures for reporting and responding to breaches of 
information. DHS continues to incorporate privacy principles and 
security measures into all E-Verify processes, and any changes to E-
Verify will include the highest level of privacy protections 
possible.\110\
---------------------------------------------------------------------------

    \110\ See U.S. Citizenship and Immigration Services, ``Our 
Commitment to Privacy,'' available at http://www.uscis.gov/e-verify/about-program/our-commitment-privacy.
---------------------------------------------------------------------------

    Comment. A number of commenters stated their belief that E-Verify's 
non-discrimination provisions will ensure that all employees will 
receive the same wages and benefits.
    Response. DHS clarifies that the non-discrimination provisions in 
the E-Verify MOU prohibit only discrimination based on national origin 
or citizenship (or immigration) status in violation of section 274B of 
the INA, 8 U.S.C. 1324b, or Title VII. The language is not intended to 
ensure that all employees will receive the same wages and benefits, 
except where any differential is based on national origin status. DHS 
notes, however, that the STEM OPT extension program contains separate 
provisions to prevent adverse impacts on U.S. workers. Among other 
things, the Training Plan established by this rule requires employers 
to attest to various wage and other protections for U.S. workers and 
STEM OPT students.
    Comment. One commenter stated that employers and the academic 
community are not familiar with E-Verify and suggested that DHS promote 
and explain it to stakeholders.
    Response. DHS agrees that it is important to promote and explain E-
Verify to stakeholders, and the Department continues to focus on such 
outreach. Additionally, the USCIS Web site contains an informative 
portal (http://www.uscis.gov/e-verify) with a number of resources 
regarding E-Verify, including but not limited to E-Verify manuals and 
guides; various memoranda of understanding; E-Verify brochures, fliers 
and presentations (in English and various other languages); 
presentations specially designed for employers, workers, federal 
contractors, and state workforce agencies; and the E-Verify monthly 
newsletter.
    Comment. One commenter suggested that DHS either apply the E-Verify 
participation requirement to the entire OPT program or waive it as a 
requirement for STEM OPT extensions.
    Response. DHS disagrees with the commenter's recommendation that 
the E-Verify requirement either be applied to the entire OPT program or 
waived as a requirement for STEM OPT extensions. The focus of this rule 
is to amend regulations related to STEM OPT extensions. There are, of 
course, many cases in which DHS could condition receipt of a benefit on 
the use of E-Verify, but the Department has chosen to take a measured 
and incremental approach by thus far applying the E-Verify requirement 
to employers of STEM OPT workers. DHS notes that this approach has so 
far been highly successful. DHS may consider requiring the use of E-
Verify with respect to other benefits granted by the Department in 
future rulemakings.
    Comment. Several commenters recommended eliminating the E-Verify 
requirement. These commenters cited several concerns, including that E-
Verify may increase burdens and expenses on both employers and 
employees; unfairly limit job options and career opportunities for STEM 
OPT students, because many companies are not willing to participate in 
E-Verify; and create an unnecessary barrier to the hiring of qualified 
F-1 students. Some commenters stated that the E-Verify requirement is 
redundant for students in compliance with STEM OPT rules and instead 
simply works against the interest of those students.
    Response. E-Verify is not new for employers of STEM OPT students. 
Since 2008, every employer that has employed F-1 students on STEM OPT 
extensions has been required to enroll the relevant hiring site or work 
location in E-Verify. Because E-Verify is fast and easy to use (as 
discussed above) and STEM OPT employers have experience with the 
system, DHS does not believe the requirement would be particularly 
burdensome to potential employers affected by this rule. Relatedly, DHS 
also disagrees that the E-Verify requirement will substantially change 
the volume of STEM OPT employers or unfairly limit job options for STEM 
OPT students.
    Comment. One commenter provided anecdotal information suggesting 
that a specific Federal agency does not currently participate in E-
Verify. According to that commenter, if a federal agency is unwilling 
to register for E-Verify, ``what hope is there that non-governmental 
employers will utilize the system?'' Another commenter stated that 
companies with federal employment contracts do not have policies 
reflecting E-Verify's prohibitions against unlawful discriminatory 
practices based on national origin or citizenship status.
    Response. DHS supports the premise that the Federal Government 
should lead by example, and notes that the Office of Management and 
Budget (OMB) requires all Executive Branch agencies to participate in 
E-Verify. The Federal Government also requires covered federal 
contractors to participate in E-Verify as a condition of federal 
contracting. Even if a federal contractor that uses E-Verify does not 
have its own policies reflecting E-Verify's prohibitions against 
unlawful discriminatory practices based on national origin or 
citizenship status, that federal contractor is bound to the same 
prohibitions, as articulated in the E-Verify Memorandum of 
Understanding, regarding violation of Title VII and the

[[Page 13083]]

anti-discrimination provision of the INA (INA sec. 274B, 8 U.S.C. 
1324b) applicable to all E-Verify users.
    Comment. One commenter suggested that the E-Verify requirement 
should depend on the size of the employer's workforce or on the 
employer's specific industry.
    Response. DHS disagrees with the commenter's recommended change 
because of the inequities such a change would introduce into E-Verify. 
Requiring all STEM OPT extension employers to enroll in E-Verify, 
without exception, supports a consistent and transparent program that 
treats all participants the same and helps protect both STEM OPT 
students and U.S. workers. Further, E-Verify's robust public outreach 
materials and frequent technological enhancements reduce burdens on all 
employers, large and small. Finally, when E-Verify employers sign the 
required Memorandum of Understanding, they agree to train their users 
on proper employment verification procedures. This is in addition to 
the obligation to avoid unlawful discriminatory practices based on 
national origin or citizenship status. Waiving the E-Verify requirement 
for certain employers would thus undermine the safeguards of the rule.
    Comment. Several commenters supported mandatory E-Verify 
participation for all employers, with resulting fines for any program 
violations, and recommended that DHS require all employers to use E-
Verify. Another commenter requested more government regulation of E-
Verify. Another commenter suggested additional regulation of E-Verify, 
but did not specify what such regulation would entail. Additionally, a 
commenter suggested that the E-Verify parameters should include 
``better screening [mechanisms] to weed out'' participation by what the 
commenter described as dishonest consulting companies that exploit 
students.
    Response. With respect to requiring all employers to use E-Verify, 
DHS notes both (1) that this request is outside the scope of this 
rulemaking and (2) that because participation requirements are set by 
federal statute, congressional action would be required to make any 
such changes. With respect to the other suggestions noted above, DHS 
notes that the E-Verify MOU already prescribes E-Verify enrollment and 
use, and broadly prohibits unlawful or improper use of E-Verify. USCIS 
also maintains an E-Verify Hotline and a Monitoring and Compliance 
Division that investigates and responds to complaints regarding E-
Verify-related exploitation. The Department does not agree that 
additional mechanisms are necessary, and to the extent that the 
comments are directed at the E-Verify program generally, they are 
outside the scope of this rulemaking.
    Accordingly, DHS is finalizing the proposed E-Verify requirement 
without change. DHS invites employers and employees to learn more about 
E-Verify. Tutorials, guidance, and other informative resources are 
available at http://uscis.gov/e-verify. Information about employer 
obligations and employee rights under the anti-discrimination provision 
of the INA (INA sec. 274B, 8 U.S.C. 1324b) is available on the 
following Web site: www.justice.gov/crt/about/osc.
ii. Use of E-Verify Company ID Number
    Comment. Several commenters recommended eliminating the requirement 
that the employer's E-Verify ID number be listed on Form I-983, 
Training Plan for STEM OPT Students, because having this information 
visible to the student and DSO could lead to fraudulent use of such 
numbers. According to two commenters, some employers currently refuse 
to provide their E-Verify ID number to students or universities due to 
fraud concerns and have adopted processes to avoid revealing this 
sensitive information, such as filing the students' STEM OPT extensions 
themselves.
    One commenter cited anecdotal reports of E-Verify ID numbers being 
posted online and F-1 students fraudulently using those numbers to 
apply for STEM OPT extensions. According to the commenter, there is no 
follow-up or investigation as to whether the student actually works for 
the employer whose number is listed on Form I-765, Application for 
Employment Authorization, so students can freely pass these numbers 
around, and have reportedly done so. The commenter also asked DHS to 
bolster E-Verify anti-fraud measures by allowing the employer to file 
the application instead of the prospective employee. Similarly, another 
commenter asked DHS to give employers a list of F-1 students who have 
used their E-Verify ID numbers as a security measure.
    Response. DHS is concerned about the possible abuse of the E-Verify 
program and potential fraud from the unauthorized publication of E-
Verify ID numbers. In addressing this issue, DHS had considered that 
employers often provide their E-Verify ID numbers to potential 
employees in order to apply for work authorization from USCIS by filing 
Applications for Employment Authorization.\111\ In addition, some 
employers and universities make their E-Verify ID numbers available on 
the internet. For that reason, DHS believed that releasing such numbers 
to a limited group of students would not represent a significant fraud 
risk.
---------------------------------------------------------------------------

    \111\ See item #17 on Form I-765, available at http://
www.uscis.gov/sites/default/files/files/form/i-765.pdf.
---------------------------------------------------------------------------

    DHS understands, however, that some employers take significant 
steps to protect their E-Verify ID numbers from publication, including 
mailing Applications for Employment Authorization directly to USCIS on 
their employees' behalf in order to avoid revealing the number to such 
employees. Some employers believe that the unauthorized release or 
publication of an employer's E-Verify ID number could result in 
significant fraud that might be difficult to redress. Accordingly, in 
response to these concerns, DHS has decided to remove the E-Verify ID 
number from the Training Plan for STEM OPT Students. DHS notes that it 
will continue to receive such employers' E-Verify ID numbers through 
the submission of Applications for Employment Authorization.
    DHS declines to adopt the suggestion to change the current STEM OPT 
application process so that the employer (rather than the student) 
would be required to file the Application for Employment Authorization 
on the student's behalf. This change, in which the employer would 
effectively become the applicant for employment authorization, would 
represent a significant policy shift and could produce broad and 
unwanted repercussions. Among other things, such a change would largely 
and improperly exclude the STEM OPT student from the application 
process, and further make the student dependent on the employer for 
maintaining the student's status. DHS believes such a change to its 
longstanding policy would be disproportionate to the relatively few 
alleged cases of fraud. Finally, DHS declines to adopt the 
recommendation to provide employers with lists of F-1 students, due to 
privacy considerations and the administrative burdens related to 
issuing such lists.
iii. Non-Replacement Attestation
    Comment. Several commenters voiced concern about the breadth of 
some of the language in the Employer Certification section (Section 4) 
of the proposed Mentoring and Training Plan, stating that such language 
could create litigation risks or interfere with

[[Page 13084]]

employers' business judgments. Specifically, several employers and 
business associations took issue with proposed certification 4(d), 
which would require the employer to attest that ``the Student's 
practical training opportunity will not result in the termination, 
laying off, or furloughing of any full- or part-time, temporary or 
permanent U.S. workers.''
    Those commenters stated that the proposed attestation was overly 
broad and problematic. One commenter stated that this language could 
restrict the employer's ability to terminate a U.S. worker for cause. 
As an example, the commenter added that ``if an employee's work 
performance was deficient enough to warrant termination for cause, but 
the employee's work group also had employees working pursuant to STEM 
OPT, one could argue that the termination could not proceed.'' Another 
commenter stated that ``if an employee working pursuant to STEM OPT 
reported another employee for egregious misconduct, and the allegations 
were substantiated, an employer would be unable to proceed with a 
termination of the individual.''
    To alleviate these concerns, commenters alternatively requested 
that DHS entirely eliminate the attestation requirement, delete the 
word ``terminate'' from the attestation, or change the language to read 
as follows: ``The employer is not providing the practical training 
opportunity for the purpose of and with the intent to directly 
terminate, lay off, or furlough, any full- or part-time, temporary or 
permanent U.S. workers.'' Additionally, a commenter recommended 
amending the proposed rule to include a ``presumption of non-violation 
for any employment decisions'' that are supported by bona fide business 
reasons or reasons unrelated to replacing U.S. workers with STEM OPT 
students. Finally, another commenter proposed that DHS consult 
protections provided to U.S. workers pursuant to provisions in the H-1B 
regulations.
    Response. DHS believes many of the recommendations described above 
would undermine the protections the attestation is meant to provide to 
the U.S. workers of participating employers. In this rulemaking, the 
Department has sought to balance the benefit that STEM OPT students 
derive from practical training opportunities; the benefit that the U.S. 
economy, U.S. employers, and U.S. institutions of higher education 
receive from the continued presence of STEM OPT students in the United 
States; and the protection of U.S. workers, including those employed by 
STEM OPT employers. The attestation related to U.S. employees is 
essential to achieving this balance, and the Department thus declines 
to eliminate it or to weaken its protections by introducing elements of 
intent or including a presumption of non-violation.
    DHS, however, has made changes to the attestation in the final rule 
in response to comments expressing concern that the proposed 
attestation, including its reference to ``terminating,'' could be 
understood to prohibit STEM OPT employers from terminating U.S. workers 
for cause. In instituting this policy, the Department intends that 
employers be prohibited from using STEM OPT students to replace full- 
or part-time, temporary or permanent U.S. workers. DHS has revised 
certification 4(d) on the Training Plan, and the associated regulatory 
text, to say exactly that. See Section 4 of Form I-983, Training Plan 
for STEM OPT Students; 8 CFR 214.2(f)(10)(ii)(C)(10)(ii). This 
modification is meant to address employers' claims about potential 
litigation risks and interference with their business judgments. DHS 
also notes that the word ``terminating'' has been removed entirely from 
the attestation, as the Department believes its inclusion is 
unnecessary to make certain that STEM OPT extensions are not used as a 
mechanism to replace U.S. workers.
    DHS further clarifies that hiring a STEM OPT student and signing 
certification 4(d) does not bar an employer from discharging an 
employee for cause, including inadequate performance or violation of 
workplace rules. DHS will look at the totality of the circumstances to 
assess compliance with the non-replacement certification. For example, 
evidence that an employer hired a STEM OPT student and at the same time 
discharged a U.S. worker who was employed in a different division, 
worked on materially different project assignments, or possessed 
substantially different skills, would tend to suggest that the U.S. 
worker was not replaced by the STEM OPT student. Conversely, evidence 
that an employer sought to obscure the nexus between a STEM OPT 
student's hire and the termination of a U.S. worker by delaying or 
otherwise manipulating the timing of the termination would tend to 
suggest that the U.S. worker was replaced by the STEM OPT student. In 
any event, the barred ``replacement'' of U.S. workers refers to the 
loss of existing or prior employment.
    With respect to the comment suggesting that DHS consult the 
protections for U.S. workers found in the H-1B statute, DHS notes that 
it considered those protections and other similar provisions in the 
INA. DHS relied on many of these provisions as informative guideposts 
for this rulemaking, but the Department was also required to weigh the 
specific and different goals of the STEM OPT extension program and 
other factors specific to this rulemaking. The Department believes it 
has found the right balance with revised certification 4(d). This 
revised certification makes the Department's policy clear and thus 
provides protection for U.S. workers while addressing the legitimate 
business concerns raised by commenters.
    Comment. Some commenters requested that DHS amend certification 
4(d) to further protect U.S. workers. These commenters asked that the 
certification: (1) More broadly prohibit an employer from employing a 
STEM OPT student when the employer has laid off any U.S. worker 
employed in the occupation and field of the intended practical training 
within the 120-day period immediately preceding the date the student is 
to begin his or her practical training with that employer; and (2) 
during the term of such practical training, require the employer to lay 
off any F-1 student before laying off any U.S. worker engaged in 
similar employment. The commenters further proposed that the relevant 
section of the proposed regulation be amended to prohibit an employer 
from providing practical training when there is a strike or lockout at 
any of the employer's worksites within the intended field of the OPT.
    Response. DHS agrees that STEM OPT employment should be subject to 
strike or lockout protections. DHS notes, however, that current DHS 
regulations already provide such protections with regard to the 
employment of all F-1 students, not just those on STEM OPT extensions. 
The Department's regulations at 8 CFR 214.2(f)(14) automatically 
suspend any employment authorization granted to an F-1 student when the 
Secretary of Labor or designee certifies to DHS that there is a strike 
or other labor dispute involving work stoppage in the student's 
occupation at his or her place of employment. That regulation will 
remain in effect.
    DHS has also considered the suggestion to establish a timeframe, 
such as the 120-day period suggested by commenters, for prohibiting 
layoffs of U.S. workers related to the employment of STEM OPT students. 
DHS believes, however, that its approach in the final rule, which 
contains no such timeframe, provides reasonable protections for U.S. 
workers while also balancing the legitimate business needs expressed by

[[Page 13085]]

employer commenters. Under the final rule, an employer cannot replace a 
U.S. worker with a STEM OPT student, regardless of the timeline. DHS 
therefore declines to implement new attestations on this subject at 
this time, but will remain attentive to the effects of the attestations 
and the aforementioned balance produced by this rule, and may consider 
revising or supplementing the employer attestations at a future date.
iv. Commensurate Compensation Attestation
    Comment. DHS received a number of comments on the requirement that 
employers provide STEM OPT students with compensation commensurate with 
that provided to similarly situated U.S. workers. Some commenters 
supported the proposed ``commensurate compensation'' requirement, 
``applaud[ing] DHS's adoption of a standard that draws upon real world 
practices that employers already utilize in their hiring practices.'' 
One commenter stated that the evidentiary requirements related to the 
commensurate compensation provision should not be so burdensome as to 
deter the participation of small employers or employers new to the OPT 
program.
    Other commenters opposed the proposed requirement, suggesting that 
the proposal was unworkable because DHS had not defined the 
commensurate compensation standard in the proposed regulatory text. One 
commenter stated that the proposed rule lacked necessary guidance on 
how to ensure that compensation offered to STEM OPT students is 
commensurate with compensation levels offered to U.S. workers. Another 
commenter stated that the requirements for commensurate compensation 
were too stringent because STEM OPT should include students who are 
performing unpaid work or are awarded grants or non-monetary 
remuneration. A significant number of comments, from universities and 
higher education associations, stated that STEM OPT students and U.S. 
students perform research for colleges and universities under a variety 
of grant and stipend programs without necessarily receiving taxable 
wages, and requested clarification that such participation was still 
contemplated for STEM OPT participants. In contrast, another commenter 
urged that students doing unpaid work, or receiving only a ``stipend,'' 
be explicitly ineligible for OPT status. Another commenter stated that 
the proposed additional protections for American workers would prove to 
be ``meaningless'' due to a variety of purported deficiencies in the 
proposed regulation, including participation by employers who hire only 
foreign workers. One commenter recommended that employers be allowed to 
factor in the effect of training time on productivity when setting 
compensation. One commenter suggested that employers be required to pay 
the Level Three wage from the Online Wage Library provided by the 
Department of Labor's Office of Foreign Labor Certification.
    Response. The final rule includes specific requirements to address 
the potential for adverse impact on U.S. workers. For instance, any 
employer wishing to hire a student on a STEM OPT extension would, as 
part of the newly required Training Plan, be required to sign a sworn 
attestation affirming that, among other things: (1) The employer has 
sufficient resources and personnel available and is prepared to provide 
appropriate training in connection with the specified opportunity; (2) 
the student will not replace a full- or part-time, temporary or 
permanent U.S. worker; and (3) the opportunity assists the student in 
attaining his or her training objectives. Moreover, the final rule 
requires that the terms and conditions of an employer's STEM practical 
training opportunity--including duties, hours and compensation--be 
commensurate with those provided to the employer's similarly situated 
U.S. workers.
    Along the same lines, work duties must be designed to assist the 
student with continued learning and satisfy existing ICE guidelines for 
work hours when participating in post-completion OPT. To help gauge 
compliance, employers are required to provide DHS with student 
compensation rate information, which will help the Department monitor 
whether STEM OPT students are being compensated fairly. Additionally, 
the rule authorizes a recurrent evaluation process and mandates 
notification of material changes to the Training Plan, including 
material changes to STEM OPT student compensation, to allow ICE to 
monitor student progress during the OPT period. The evaluations will 
ensure continuous focus on the student's development throughout the 
student's training period. Finally, the rule clarifies the Department's 
authority to conduct site visits to ensure compliance with the above 
requirements.
    The above provisions protect against adverse consequences on the 
U.S. labor market, including consequences that may result from 
exploitation of STEM OPT students. DHS believes that the assurances 
regarding the practical training opportunity, the attestation of non-
replacement of existing employees, the requirement for commensurate 
compensation, and other related requirements, provide adequate 
safeguards to protect U.S. worker interests. DHS expects this will 
still be the case even if a participating employer employs many non-
U.S. workers. If such an employer does not employ and has not recently 
employed more than two similarly situated U.S. workers in the area of 
employment, the employer nevertheless remains obligated to attest that 
the terms and conditions of a STEM practical training opportunity are 
commensurate with the terms and conditions of employment for other 
similarly situated U.S. workers in the area of employment.
    DHS expects that STEM OPT students will be engaging in productive 
employment. DHS also expects the commensurate compensation of similarly 
situated U.S. workers would account for any effects of training time on 
productivity. While it is required for participating students and 
employers to explain the goals, objectives, supervision, and evaluation 
of a STEM OPT period, the fact that the employer is providing a work-
based learning opportunity is not a sufficient reason to reduce the F-1 
student's compensation. Furthermore, such a discounted compensation 
also runs the risk of having a negative impact on similarly situated 
U.S. workers. A commenter's suggestion to this effect is thus rejected.
    DHS also disagrees with comments stating that the proposed rule 
lacked adequate guidance on the issue of commensurate pay and 
suggesting further definition in the regulatory text. These commenters 
did not explain which aspects of DHS's guidance on this topic were 
ambiguous; nevertheless, DHS now further clarifies the commensurate 
compensation requirement. Commensurate compensation refers to direct 
compensation provided to the student (pre-tax compensation). This 
compensation must be commensurate to that provided to similarly 
situated U.S. workers. ``Similarly situated U.S. workers'' means those 
U.S. workers who perform similar duties and have similar educational 
backgrounds, experience, levels of responsibility, and skill sets. The 
employer must review how it compensates such U.S. workers and 
compensate STEM OPT students in a reasonably equivalent manner. If an 
employer, for example, hires recent graduates for certain positions, 
the compensation provided to a STEM OPT student in such a position must 
be in accordance with the same system and scale as that provided to 
such similarly situated U.S. workers.

[[Page 13086]]

    If the employer, however, does not employ or has not recently 
employed at least two other U.S. workers who are performing similar 
duties, then the employer is obligated to obtain information about 
other employers offering similar employment in the same geographic 
area. Helpful information can be obtained, for example, from the 
Department of Labor, which provides wage information based on data from 
the Occupational Employment Statistics survey through its Office of 
Foreign Labor Certification's Online Wage Library, available at http://flcdatacenter.com/OesWizardStart.aspx. Whether relying on information 
from the Department of Labor, wage surveys, or other reasonable 
sources, the wage data must relate to the same area of employment as 
the work location of the STEM OPT student and the same occupation. In 
general, it is DHS's expectation that employers have legitimate, 
market-based reasons for setting compensation levels. This rule 
requires that an employer hiring a STEM OPT student be prepared to 
explain those reasons and show that such F-1 students receive 
compensation reasonably equivalent to similarly situated U.S. workers.
    In addition to these detailed requirements, DHS noted in the 
preamble of the proposed rule, and reiterates here, that DHS interprets 
the compensation element to encompass wages and other forms of 
remuneration, including housing, stipends, or other provisions 
typically provided to employees. While positions without compensation 
may not form the basis of a STEM OPT extension, the compensation may 
include items beyond wages so long as total compensation is 
commensurate with that typically provided to U.S. workers whose skills, 
experience, and duties would otherwise render them similarly situated. 
Any deductions from salary must be consistent with the Department of 
Labor's Fair Labor Standards Act regulations at 29 CFR part 531 
regarding reasonable deductions from workers' pay. The combination of 
all the information here provides a sufficient basis for compliance 
with the rule's commensurate compensation provision.
    In short, DHS believes that the protections provided in this rule 
are sufficient, but the Department will continue to monitor the program 
and may consider revising or supplementing program requirements at a 
future date.
    Comment. A commenter stated that the proposed rule lacks an 
enforcement mechanism to ensure compliance with the provisions included 
to protect American workers. The commenter stated that the proposed 
rule provides no process to report and adjudicate suspected violations 
of the protections for U.S. workers, and fails to include any penalties 
for doing so. The commenter also stated that if the STEM OPT student is 
``contract[ed] out'' by the employer, DHS's ability to enforce the 
attestations will be significantly circumscribed.
    Response. There are a number of enforcement and oversight 
mechanisms built into the rule that will facilitate compliance, as 
detailed above (see section IV.B. of this preamble). These include 
reporting requirements, site visits, periodic evaluation of a student's 
training, and required notification of any material changes to or 
deviations from the Training Plan. In addition, individuals may contact 
the Student and Exchange Visitor Program at ICE by following the 
instructions at https://www.ice.gov/sevis/contact. Finally, violations 
of the regulation may also be reported through the form accessible at 
https://www.ice.gov/webform/hsi-tip-form. For the reasons previously 
stated, DHS believes that the new protections for U.S. workers in this 
rule--which are unprecedented in the 70-year history of the overall OPT 
program--provide a reasonable and sufficient safeguard.
    Comment. The same commenter wrote that the rule should include more 
protections for U.S. workers; the commenter suggested that the rule 
should (1) require an approval process for employers similar to the 
process for approving schools that admit nonimmigrant students and (2) 
explain what constitutes sufficient resources and personnel in the 
employer attestation statement. Finally, the commenter suggested that 
the rule should also address discriminatory hiring advertisements that 
seek to recruit only OPT students, including by providing a remedy for 
Americans who are replaced by OPT students.
    Response. For the reasons previously stated, DHS believes that the 
protections for U.S. workers in this rule provide a reasonable and 
sufficient safeguard. With respect to the specific alternatives 
proposed by the commenter: Item (1) would be extremely burdensome and 
resource intensive for DHS, and item (2) requests clarification for 
language that DHS believes is either self-explanatory or sufficiently 
addressed elsewhere in this preamble. Of course, DHS stands ready to 
provide further clarification through guidance as needed.
    Finally, DHS does not anticipate that the application of this rule 
will result in discriminatory hiring. The rule in no way requires or 
encourages employers to target students based on national origin or 
citizenship, particularly through any type of hiring advertisements. 
Rather, the rule protects against employment discrimination by 
requiring that an employer make and adhere to an assurance that the 
student on a STEM OPT extension will not replace a full- or part-time, 
temporary or permanent U.S. worker. Furthermore, existing federal and 
state employment discrimination laws and regulations provide 
appropriate authorities for addressing and remedying employment 
discrimination. In particular, employers that generally prefer to hire 
F-1 students over U.S. workers (including U.S. citizens), or that post 
job advertisements expressing a preference for F-1 students over U.S. 
workers, may violate section 274B of the INA, 8 U.S.C. 1324b, which is 
enforced by the Department of Justice's Office of Special Counsel for 
Immigration-Related Unfair Employment Practices. This anti-
discrimination provision provides for civil penalties and backpay, 
among other remedies, for employers found to have violated the law. 
Such authorities clearly fall within certification 4(e) on the Form I-
983, Training Plan for STEM OPT Students, which establishes a 
commitment by the employer that the training conducted under STEM OPT 
``complies with all applicable Federal and State requirements relating 
to employment.''
    Comment. Some commenters stated that because STEM OPT participants 
are students, they would not be comparable to similarly situated U.S. 
workers, who are not students.
    Response. DHS disagrees that STEM OPT students cannot be compared 
to other members of the labor force. Conditions experienced by an F-1 
student participating in the STEM OPT extension should be the same as 
those experienced by U.S. workers performing similar duties and with 
similar educational backgrounds, employment experience, levels of 
responsibility, and skill sets. If a university, for example, hires 
individuals who have just completed courses of study for certain 
positions, the university cannot use a different scale or system to 
determine the compensation of a STEM OPT student. The STEM OPT student 
must be compensated commensurate with the compensation provided to such 
similarly situated U.S. workers.
    Comment. One commenter suggested that employers should be required 
to provide compensation figures for all of their employees, not just 
STEM OPT employees.
    Response. The employer is required to identify the compensation 
provided to each STEM OPT student, as part of the

[[Page 13087]]

Training Plan the employer signs. DHS also reserves the right to ask 
employers to provide the evidence they used in assessing the 
compensation of similarly situated U.S. workers. This may include 
compensation figures for similarly situated employees who are U.S. 
workers. Requiring employers to report compensation figures for all 
U.S. worker employees, however, would not necessarily provide 
meaningful data. STEM OPT students will use their knowledge and skills 
to perform duties and assume responsibilities that are not similar to 
those, for instance, of corporate management or mailroom employees.
iv. Other Comments on Attestations and Restrictions
    Comment. DHS received a number of comments suggesting that 
additional attestations or other restrictions, including recruitment 
requirements, be added to further protect U.S. workers. A number of 
commenters stated that companies should be unable to hire anyone but a 
U.S. citizen until U.S. citizens are all employed, whether in on-the-
job training positions or regular staff positions. One commenter stated 
that ``[o]nly when a position cannot be filled by a U.S. worker should 
an international worker be considered; this is especially true for 
entry level positions since many international students have the 
benefit of experience or additional education in their home country 
before beginning their OPT qualifying degree program and are not truly 
`entry level' employees.'' One commenter proposed additional provisions 
to safeguard U.S. workers, including requiring companies to look for 
U.S. citizen workers before hiring international students and having 
the U.S. Department of Labor fine companies that did not comply with 
the proposed labor protections. Another comment referenced opinions of 
a professor that STEM OPT contributes to employers hiring younger 
workers who may replace more-experienced U.S. workers, and suggested 
that recruitment requirements favoring experienced U.S. workers be 
added to the rule.
    One commenter also suggested that DHS amend the rule consistent 
with section 212(a)(5)(A) of the INA, 8 U.S.C. 1182(a)(5)(A), which 
designates as inadmissible any foreign national ``seeking to enter the 
United States for the purpose of performing skilled or unskilled 
labor'' absent a certification from the Department of Labor that such 
employment will not adversely affect similarly employed U.S. workers. 
According to the commenter, this provision required DHS to include a 
recruitment requirement for STEM OPT employers and a role for the 
Department of Labor. Some commenters similarly stated that the 
Department of Labor should review all employer submissions with respect 
to hours and wages. Another commenter suggested that DHS add a labor 
condition application requirement and petition process similar to those 
used for seeking H-1B visas.
    Response. DHS carefully considered the suggestions to include 
recruitment requirements in the STEM OPT extension program but has 
determined not to include such requirements at this time. DHS notes 
that it has implemented a number of new protections for U.S. workers 
and STEM OPT students in this rule, including the requirement to pay 
commensurate compensation, the prohibition against replacing U.S. 
workers, various reporting requirements, and clarifying the agency's 
authority to conduct site visits. Balanced within the broader goals of 
this rule, DHS has determined that these protections are sufficient. 
The Department, however, will continue to evaluate these protections 
and may choose to include new attestations or other requirements in 
future rulemakings.
    With regard to the suggestion that DHS is not in compliance with 
section 212(a)(5) of the INA, this provision is limited, by definition, 
to certain individuals seeking permanent immigrant status. See INA sec. 
212(a)(5)(D), 8 U.S.C. 1182(a)(5)(D). The provision does not apply to 
students in F-1 nonimmigrant status or to any other nonimmigrant 
seeking employment in the United States.
    With regard to suggestions to provide a greater role for the 
Department of Labor, DHS appreciates that the Department of Labor's 
long experience with foreign labor certification might assist DHS in 
its ongoing administration of the STEM OPT extension. Accordingly, 
where it may prove valuable and as appropriate, DHS may consult with 
the Department of Labor to benefit from that agency's expertise.

E. STEM OPT Extension Validity Period

1. Description of Final Rule and Changes from NPRM
    This final rule sets the duration of the STEM OPT extension at 24 
months. Following seven years of experience with the 17-month STEM OPT 
extension implemented in the 2008 IFR, DHS re-evaluated the length of 
the extension, primarily in light of the educational benefits such 
training provides to F-1 students and the benefits such students 
provide to the U.S. economy and other national interests. Consistent 
with the proposed rule, this final rule increases the STEM OPT 
extension period to 24 months for students meeting the qualifying 
requirements. The 24-month extension, when combined with the 12 months 
of initial post-completion OPT, allows qualifying STEM students up to 
36 months of practical training.
    Also consistent with the proposed rule, the final rule provides, 
for students who subsequently attain another STEM degree at a higher 
educational level, the ability to participate in an additional 24-month 
extension of any post-completion OPT based upon that second STEM 
degree. In particular, the rule would allow a student who had completed 
a STEM OPT extension pursuant to previous study in the United States 
and who subsequently obtained another qualifying degree at a higher 
degree level (or has a qualifying prior degree, as discussed in more 
detail below), to qualify for a second 24-month STEM OPT extension upon 
the expiration of the general period of OPT based on that additional 
degree.
    This aspect of the rule is finalized as proposed.
2. Public Comments and Responses
i. Length of STEM OPT Extension Period
    Comment. Many commenters expressed support for the proposed 24-
month STEM OPT extension period. One commenter stated that this length, 
in combination with the 12-month post-completion OPT period, aligns 
well with the typical training period for doctoral students, as well as 
the three-year grants often provided by the NSF to such students. A 
commenter commended the three-year total insofar as it ``mirrors a 
cycle of research and training that is more in line with real-world, 
practical applications.'' Another commenter, who self-identified as an 
F-1 student in Electrical Engineering, suggested that the 24-month 
period for a STEM OPT extension would dovetail with many research and 
development projects and was an appropriate time period because it 
would further encourage employers to allow STEM OPT students to gain 
practical experience related to their fields of study. The student 
explained that a summer internship on a power generation project could 
lead to a post-completion training opportunity with the same company if 
the STEM OPT extension was finalized for a 24-month period.

[[Page 13088]]

    Another commenter stated that ``most development projects are done 
on a yearly basis,'' and that by lengthening the STEM OPT extension 
period to 24 months, students would be eligible to participate in STEM 
OPT for multiple project cycles. One commenter welcomed the proposed 
24-month extension because it provided ``added flexibility'' for 
workforce planning needs. That commenter explained that this change 
could improve innovation and development of new products and services, 
and it could help STEM students gain necessary experience for their own 
career growth.
    A commenter added that the extension period would allow students to 
gain more ``hands-on practical experience'' by working on new products 
and initiatives that are more complex and that have a longer 
development cycle. One commenter suggested that the 24-month extension 
would greatly benefit research activities. This commenter opined that 
such extensions would help students by providing a period of stay 
consistent with the research needs in the commenter's field, which 
would also benefit the commenter's future job prospects in the 
commenter's home country.
    Some commenters recommended a longer STEM OPT extension, most 
commonly 36 months, thus increasing practical training to a total of 48 
months for STEM students. Other commenters suggested a total STEM OPT 
period as long as six years. Some commenters sought longer extensions 
so as to allow students additional attempts at applying for and 
obtaining H-1B visas.
    Response. Currently, DHS views a 24-month extension as being 
sufficient to attract international STEM students to study in the 
United States, and to offer a significant opportunity for such students 
to develop their knowledge and skills through practical application. 
Moreover, as stated elsewhere, the 24-month period--in combination with 
the 12-month post-completion OPT period--is based on the complexity and 
typical duration of research, development, testing, and other projects 
commonly undertaken in STEM fields. Such projects frequently require 
applications for grants and fellowships, grant money management, 
focused research, and publications. As such, they usually require 
several years to complete. For instance, NSF typically funds projects 
through grants that last for up to three years.\112\ As the NSF is the 
major source of federal funding for grants and projects in many STEM 
fields, including mathematics and computer science, DHS believes the 
standard duration of an NSF grant served as a reasonable benchmark for 
determining the maximum duration of OPT for STEM students. DHS 
reiterates that the focus of this rule is to enhance educational 
objectives, not to allow certain graduates more opportunities to apply 
for or obtain H-1B visas.
---------------------------------------------------------------------------

    \112\ National Science Foundation, Grant Proposal Guide. sec. 
II.c.2.a.(4)(b), available at http://www.nsf.gov/pubs/policydocs/pappguide/nsf15001/gpg_index.jsp (``The proposed duration for which 
support is requested must be consistent with the nature and 
complexity of the proposed activity. Grants are normally awarded for 
up to three years but may be awarded for periods of up to five 
years.''). For instance, NSF funding rate data show that in fiscal 
years 2012-2014, grant awards for biology were provided for an 
average duration of 2.87, 2.88, and 2.81 years, respectively.
---------------------------------------------------------------------------

    Comment. Some commenters viewed the 24-month extension as too 
lengthy, stating that a promising individual does not need an 
additional 24 months to prove his or her worth in a position. One 
comment quoted a university professor as stating that ``[i]t's an over-
reach to claim that someone who completes a master's degree in as 
little as 12 months needs three years interning--at low or no pay in 
many cases--to get further training.'' The commenter stated that few 
STEM OPT graduates will work on an NSF grant-funded project and that 
``[v]irtually all of the STEM graduates will work in the private sector 
on applied projects and tasks where lengths are typically 6 months or 
less.'' The commenter did not provide a basis for these factual 
assertions.
    Response. The purpose of the 24-month extended practical training 
period is to provide the student an opportunity to receive work-based 
guided learning and generally enhance the academic benefit provided by 
STEM OPT extensions. The purpose is not to have the student prove his 
or her worth. DHS disagrees with the implication that the extension 
will not effectively enhance and supplement the individual's study 
through training. Consistent with many comments received from higher 
education associations and universities, DHS believes that allowing 
students an additional two years to receive training in their field of 
study would significantly enhance the knowledge and skills such 
students obtained in the academic setting, benefitting the students, 
U.S. educational institutions, and U.S. national interests.
    Moreover, while DHS agrees it is possible that some STEM OPT 
students may not ``need'' the extension, DHS expects that many 
qualifying students (including master's students) will receive 
significant educational benefits from the extension. Based on the 
public comments received, DHS expects that some students in some fields 
and degree programs in fact would benefit from more than three years of 
practical training. DHS concludes, however, that conditioning the 
period of employment authorization on case-by-case demonstrations of 
need would significantly increase burdens on the Department and 
potentially yield inefficient and inconsistent adjudications. DHS also 
disagrees with the notion that the STEM OPT extension allows 
internships at little or no pay; this rule specifically prohibits that 
kind of activity. Based on the above, DHS considers 24-month STEM OPT 
extensions, combined with the other features of this rule, sufficient 
to serve the purpose of this rule while appropriately protecting U.S. 
worker interests.
    Comment. Some commenters stated that DHS did not base the proposed 
24-month duration on sufficient information. One commenter stated that 
his first post-college software development project took one year, and 
that ``[t]he average time a new graduate stays at a first job is only 
18 months.'' The commenter did not cite the source of this information 
or state whether the 18-month figure applies to STEM graduates only.
    Response. The anecdotal information provided by the commenter about 
the commenter's first software development project contradicts many 
other comments in the record stating that the proposed extension length 
was consistent with their experience in STEM fields generally. The 
commenter's general statement about the average time a graduate stays 
at a first job is unsupported; DHS has no basis to determine whether 
this figure relates to STEM students specifically, or what the 
relationship might be between this figure and the appropriate period of 
time for practical training.
    Comment. Several commenters suggested differentiating STEM OPT 
extension periods by grade or degree level. One commenter recommended 
that doctoral students should obtain longer OPT periods than others.
    Response. DHS has decided to extend OPT periods based on field of 
study--specifically, for students completing requirements for their 
degrees that are in STEM fields--rather than based upon education 
level. As noted above, this rule recognizes the need to strengthen the 
existing STEM OPT extension, in significant part, to enhance the 
integrity and educational benefit of the program

[[Page 13089]]

in order to help maintain the nation's economic, scientific, and 
technological competitiveness. Additionally, a primary basis for 
extending OPT to 24 months for STEM students is, as stated above, the 
complexity and typical duration of research, development, testing, and 
other projects commonly undertaken in STEM fields. This policy is also 
consistent with DHS practice, which has traditionally not extended the 
length of the OPT period based upon level of degree. For all these 
reasons, DHS declines to incorporate the commenter's request to extend 
the validity period of the extension based upon degree level.
    Comment. A commenter suggested a total post-completion OPT period 
of three to four months. The commenter stated that a shorter OPT period 
was necessary to prevent wages from declining and to avoid ``pit[ting] 
foreign students against [U.S.-based workers] in [the] job market.'' 
Another commenter stated that ``[p]erhaps if the program is short 
enough, employers will treat it as mutually beneficial training rather 
than a more long-term employment prospect.''
    Response. To the extent the commenters seek a change in the overall 
OPT program, the comment is outside the scope of the rulemaking. And 
for the reasons stated above, DHS has determined that an OPT extension 
of three to four months would be insufficient for students in the STEM 
fields to further the objectives of their courses of study by gaining 
knowledge and skills through on-the-job training. Additionally, this 
rule includes safeguards for the interests of U.S. workers.
ii. Availability of a Second STEM OPT Extension
    Comment. One commenter requested that DHS provide further 
explanation as to ``why a foreign student would need a second 2-year 
extension period after receiving an advanced STEM degree, when the 
student has already enjoyed a full 3 years of OPT after the initial 
STEM degree.'' The commenter stated that, at a minimum, DHS should 
require a student who seeks a second STEM OPT extension to show that 
the advanced degree is in a field completely different from the 
undergraduate degree field. A commenter similarly requested that DHS 
limit the extension to once per lifetime, stating that the increased 
duration ``has the potential to blur the line between a student visa 
and an employment visa.''
    Response. DHS disagrees with the commenter's suggestion that a 
second two-year STEM OPT extension be contingent upon obtaining an 
advanced degree in a completely different field. Such a requirement 
could stifle a student's effort to specialize and build substantial 
expertise in a selected field of interest, whereas affording a second 
two-year STEM OPT extension could encourage the student to invest 
further in his or her education to develop greater expertise or 
specialization within the STEM field. In addition, an enormous range of 
practical training opportunities may exist within a given field. For 
example, a student could initially graduate with a bachelor's degree in 
microbiology, physics, or engineering and conduct academic research 
during the first STEM OPT extension. Then, the student could return to 
school to obtain a masters or doctoral degree in the same field and use 
a second STEM OPT extension to obtain practical training in a more 
specialized or industrial capacity. Allowing only one lifetime STEM OPT 
extension may unnecessarily disincentivize specialization in these 
important and innovative fields.
iii. Other Comments Related to Multiple Extensions
    Comment. One commenter sought clarification on whether the proposed 
rule would allow a student to obtain two consecutive STEM OPT 
extensions, with one directly following the other. Another commenter 
stated that a footnote in the preamble to the proposed regulation 
suggested that an international student who earns successive qualifying 
STEM degrees ``will be unable to link this extension with his or her 
first extension.'' The commenter recommended that DHS clarify that an 
international student who qualifies for two OPT extensions may complete 
them without any disruption in his or her practical training, provided 
all other requirements are met.
    Response. DHS clarifies that the final rule, as with the proposed 
rule, does not allow students to obtain back-to-back STEM OPT 
extensions. A STEM OPT extension can only be granted as an extension of 
a regular OPT period, and not as a freestanding period of practical 
training. A student who has already participated in a STEM OPT 
extension would need to engage in a new course of study and 
subsequently complete a new initial post-completion practical training 
period before applying for a second STEM OPT extension based on a new 
STEM degree or a previously obtained degree (other than a degree that 
had already been the basis for a STEM OPT extension). The new or 
previously obtained STEM degree would need to be at a higher level than 
the STEM degree that formed the basis of the first STEM OPT extension. 
For program integrity reasons, DHS believes that it would be 
inappropriate to allow a student to obtain two consecutive STEM OPT 
extensions without an intervening degree and period of post-completion 
OPT.
    Comment. Some commenters recommended that DHS consider allowing a 
third extension for students, thereby allowing one grant per higher 
education degree level (i.e., bachelor's, master's, and Ph.D.). One 
such commenter noted that ``[l]imiting the number of lifetime grants to 
two STEM periods would negatively impact Ph.D. graduates who do not 
already have an H-1B or qualify for another classification of 
employment authorization.''
    Response. More often than not, nonimmigrant students do not take 
extended breaks after graduating from a master's program before 
pursuing a doctoral degree.\113\ For that reason, it would be rare for 
a Ph.D. student to use one STEM OPT extension for the master's portion 
of the degree, and another STEM OPT extension for the Ph.D. portion of 
the degree. Most doctoral degrees are combined into a single program 
which grants both master's degrees and doctoral degrees. DHS believes 
that the two extensions provided by this rule are consistent with 
typical education patterns and sufficient to provide the educational, 
economic, and cultural benefits intended by the rule.
---------------------------------------------------------------------------

    \113\ SEVIS data as of January 28, 2016, shows that 
approximately 88 percent of students who had been at a master's 
education level and subsequently enrolled in a program at the 
doctoral level did so within one year of the end of their master's 
course of study.
---------------------------------------------------------------------------

    Comment. Commenters requested that a student be allowed multiple 
extensions for multiple degrees earned at the same educational level.
    Response. DHS has considered these comments. Longstanding 
administration of the F-1 visa classification and the OPT program, see 
8 CFR 214.2(f)(10), has required students to move to higher education 
levels before qualifying for additional periods of OPT, so that 
practical experience is more likely to be progressive in quality and 
scope. DHS has determined that limiting additional periods of OPT, 
including a second STEM OPT extension, to a new educational level 
continues to be a legitimate construct to protect program integrity and 
better ensure work-based learning for F-1 students is progressive.
    This higher degree requirement has long attached to 12-month post-
completion OPT. Because 24-month

[[Page 13090]]

STEM OPT extensions only are available to individuals completing their 
12-month post-completion OPT period, individuals by definition can only 
obtain a STEM OPT extension after completing a higher education level. 
The policy in this final rule merely recognizes that longstanding 
policy.

F. Training Plan for F-1 Nonimmigrants on a STEM OPT Extension

1. Description of Final Rule and Changes from NPRM
    Central to the STEM OPT extension is a new training plan 
requirement to formalize the relationship between the F-1 student's on-
the-job experience and the student's field of study and academic 
learning. The rule requires the submission of Form I-983, Training Plan 
for STEM OPT Students (Training Plan), jointly executed by the F-1 
student and the employer, but permits an employer to utilize certain 
training programs already in place. The proposed rule included this 
provision; DHS has retained the provision in the final rule, with 
changes and clarifications in response to public comments. We summarize 
these provisions and changes below.
i. General Training Plan Requirement and Submission Requirements
    The rule requires a formal training program for STEM OPT students 
in order to enhance and better ensure the educational benefit of STEM 
OPT extensions. The employer must agree to take responsibility for the 
student's training and skill enhancement related to the student's field 
of academic study. The student must prepare a formalized Training Plan 
with the employer and submit the plan to the DSO before the DSO may 
recommend a STEM OPT extension in the student's SEVIS record. If the 
student intends to request an extension based on a previously-obtained 
STEM degree, the plan must be submitted to the institution that 
provided the student's most recent degree (i.e., the institution whose 
official is certifying, based on SEVIS or official transcripts, that a 
prior STEM degree enables the student to continue his or her 
eligibility for practical training through a STEM OPT extension).
    As noted in the proposed rule, DHS expects to incorporate the 
submission of the Training Plan into SEVIS at a later date. Until that 
time DHS may require the submission of the Training Plan to ICE or 
USCIS when the student seeks certain benefits from USCIS, such as when 
the student files an Application for Employment Authorization during a 
STEM OPT extension. Under 8 CFR 103.2(b)(8)(iii), for example, USCIS 
may request additional evidence of eligibility for a benefit if the 
evidence submitted in support of an application does not establish 
eligibility. Accordingly, USCIS may request a copy of the Training 
Plan, in addition to other documentation that may be in the possession 
of the student, the employer, or the student's DSO.
    DSOs may not recommend a student for a STEM OPT extension if (1) 
the employer has not provided the attestations for that student 
required by the rule or (2) the Training Plan does not otherwise 
reflect compliance with the relevant reporting, evaluation and other 
requirements of the rule. DHS may deny STEM OPT extensions with 
employers that the Department determines have failed to comply with the 
regulatory requirements, including the required attestations. As noted 
above, ICE may investigate an employer's compliance with these 
attestations, based on a complaint or otherwise, consistent with the 
employer site-visit provisions of the rule.
    As compared to the proposed rule, and in response to public 
comments received, DHS has made two changes to the general training 
plan requirement. First, DHS modified the regulatory text and Training 
Plan form to clarify that employers may use their existing training 
programs for STEM OPT students, so long as the existing training 
program meets this rule's requirements. Second, DHS has modified the 
form to focus on training and has thus removed the word ``mentoring'' 
from the form. The information collection instrument for this plan is 
now titled ``Training Plan for STEM OPT Students,'' and not ``STEM OPT 
Mentoring and Training Plan'' as DHS had originally proposed.\114\
---------------------------------------------------------------------------

    \114\ DHS has also finalized the form with a new number in 
response to public comments, as explained below in the discussion of 
comments below regarding the form fields, number, and instructions. 
As noted throughout the rule, the form is now designated as Form I-
983, Training Plan for STEM OPT students.
---------------------------------------------------------------------------

ii. Standard of Review for Training Plan
    Under this final rule, once the student and the employer complete 
and sign the Training Plan, the student must submit the plan to the 
DSO. DSOs must review the Training Plan to ensure that it is completed 
and signed, and that it addresses all program requirements. USCIS 
maintains the discretion to request and review all documentation for 
eligibility concerns. A number of commenters requested additional 
information about the standards under which the DSO and DHS will review 
Training Plans. DHS clarifies the standard below.
iii. Form Fields, Form Number, Form Instructions
    A number of commenters provided specific suggestions regarding the 
proposed form and instructions. For instance, commenters recommended 
that DHS relabel certain fields, use a different form number than the 
Form I-910 that DHS had initially proposed, and otherwise improve the 
form. DHS has made a number of changes in response to these comments, 
including relabeling certain fields and changing the form number. DHS 
explains these changes below.
iv. Training Plan Obligations and Non-Discrimination Requirements
    A number of commenters stated or implied that U.S. employers do not 
have training programs, or related policies, and that any requirement 
that such programs be offered to F-1 students would thus benefit such 
students and not U.S. workers. Others stated that the program was 
intended to benefit students from particular countries or backgrounds, 
to the disadvantage of others. Some of these commenters raised concerns 
about various non-discrimination laws that they believed would be 
violated as a result of the training plan requirements. DHS carefully 
considered these concerns, and we summarize the comments and DHS's 
response below.
2. Public Comments and Responses
i. General Training Plan Requirement and Submission Requirements
    DHS received a number of comments raising general concerns with the 
proposed Mentoring and Training Plan, as well as related requirements. 
Such comments concerned the timelines proposed for training plan 
submission and review, as well as requirements related to reporting 
changes of employer.
    Comment. DHS received many comments related to the training 
programs and policies that many employers already have in place. These 
comments expressed a range of positions, from offering strong support 
for the proposed Mentoring and Training Plan to suggesting more 
flexible training plan requirements to suggesting the elimination of 
training plan requirements altogether. Some commenters stated that the 
requirements for the proposed Mentoring and Training Plan were 
burdensome and unrealistic, that the proposed rule contained confusing 
references to the F-1 student's role in

[[Page 13091]]

``the training program,'' and that the rule contained complex training 
requirements that seemed unrelated to the anticipated experiences of F-
1 students seeking a STEM OPT extension. Some commenters were concerned 
that small and medium-sized businesses may not have the resources to 
dedicate to fulfilling the proposed training plan requirements. In 
addition, some stated that these requirements could deter both school 
officials and employers from authorizing and participating in the STEM 
OPT extension program. One commenter stated that the proposed 
requirements were not mandated by the court decision in Washington 
Alliance. The commenter stated that the court decision only compels DHS 
to allow for notice-and-comment on the STEM OPT extension itself, and 
``does not compel DHS to adopt new and more stringent requirements like 
the [Training Plan].''
    Many commenters supported the requirement of a proposed Mentoring 
and Training Plan but requested the ability to utilize training 
programs and associated policies already in place in many businesses. 
For example, one commenter stated that the requirement ``validates 
DHS's efforts to preserve the academic component inherent in STEM OPT'' 
but recommended that ``DHS create a flexible framework that allows 
these controls to exist within the parameters of an employer's existing 
Human Resources policies.'' Another commenter noted its broad 
experience in this area, stating that as a large employer, it ``has 
achieved widespread recognition for the steps that it takes to develop 
and train employees.'' The commenter added that in 2014, it ``was 
inducted into the Training `Top 10 Hall of Fame' and was ranked seventh 
for learning and development by the Association for Talent 
Development.'' As such, the commenter stated that it should be able to 
utilize its existing training policies.
    Another commenter stated that its STEM OPT student trainees already 
participate in ``company training programs and develop ongoing 
mentoring relationships with senior team members in the natural course 
of employment.'' This commenter proposed that DHS provide more 
flexibility to employers by allowing them to meet the training plan 
requirements ``by providing . . . any documentation evidencing [a 
current training program] that is currently operated by the company'' 
and amending the proposed Mentoring and Training Plan to only ask for 
general objectives at the beginning of practical training.
    Response. DHS believes that the burdens that students and employers 
may experience in seeking to comply with training plan requirements are 
outweighed by the benefits the STEM OPT extension will afford to 
students, employers, schools, and the U.S. economy as a whole. The 
Training Plan will help ensure the integrity of the program by holding 
employers and students jointly responsible for monitoring the students' 
progress and continued learning, while also better protecting U.S. 
workers.
    DHS recognizes that many employers have existing training programs 
and related policies that enhance the learning and capabilities of 
their employees. DHS does not intend to require duplicative training 
programs or to necessarily require the creation of new programs or 
policies solely for STEM OPT students. Nor does DHS intend to require 
training elements that are unnecessary or overly burdensome for F-1 
students seeking to engage in work-based learning. However, employer-
specific training programs and policies may not always align with the 
rule's primary policy goals. For example, some businesses may focus 
more on managing a workload or maximizing individual output, whereas 
DHS's primary concern is the student's continued learning and the 
relationship between the work-based learning experience and the 
student's studies.
    Accordingly, DHS clarifies that employers may rely on an existing 
training program or policy to meet certain training plan requirements 
under this rule, so long as the existing training program or policy 
meets certain specifications. In addition, DHS has modified the 
Training Plan to make it easier for employers to refer to existing 
training programs when completing the Training Plan. For example, 
instead of requiring specific information about the individual 
supervisor's qualifications to provide supervision or training, the 
final Training Plan prompts the employer to explain how it provides 
oversight and supervision of individuals in the F-1 student's position. 
DHS also revised the Training Plan to replace the reference to a 
student's supervisor with a reference to the ``Official Representing 
the Employer.'' Finally, DHS also modified the regulatory text to 
clarify that for companies that have a training program or policy in 
place that controls performance evaluation and supervision, such a 
program or policy, if described with specificity, may suffice.
    DHS expects that in many cases, employers will find that existing 
training programs align well with the fields on the final Training 
Plan. For instance, it should be straightforward for employers with 
existing programs to describe what qualifications the employer requires 
of its trainers or supervisors, and how the employer will measure an 
employee's training progress. DHS emphasizes, however, that most fields 
in the Training Plan must be customized for the individual student. For 
instance, every Training Plan must describe the direct relationship 
between the STEM OPT opportunity and the student's qualifying STEM 
degree, as well as the relationship between the STEM OPT opportunity 
and the student's goals and objectives for work-based learning.
    In addition, the Training Plan will document essential facts, 
including student and employer information, qualifying degrees, student 
and employer certifications, and program evaluations. This data is 
important to DHS for tracking students as well as for evaluating 
compliance with STEM OPT extension regulations. DHS is concerned that 
an employer's existing training program would not normally contain this 
information. DHS believes these portions of the Training Plan should 
take a relatively short period of time to complete.
    Comment. Several commenters expressed concern that the proposed 
Mentoring and Training Plan would reduce flexibility within the STEM 
OPT extension program, and some of these commenters proposed 
alternatives to address these concerns. Some commenters stated that 
requiring a training plan that ties the on-the-job training to the 
field of academic study would ``limit [the participating F-1 student] 
to a specific department or reporting relationship.'' Commenters 
suggested that in order for STEM OPT extensions to reflect real world 
practices, STEM OPT students need to be able ``to participate in 
project rotations that give them a broader skill set relating to their 
chosen academic field'' and to accommodate already existing rotational 
programs and dynamic business environments. Some commenters stated that 
requiring employers to list specific information about a supervisor's 
qualifications and the evaluation process for STEM OPT students would 
add an unnecessary and burdensome level of bureaucracy to the 
application process.
    Commenters also indicated that they want to maintain the ability to 
easily and quickly shift STEM OPT students among positions, projects, 
or departments, and thus recommended the elimination of new training 
plan filings following each project, position,

[[Page 13092]]

or department rotation or change. For example, several commenters 
stated that even in currently existing, long-established in-house 
mentoring and training programs, flexibility is built-in because there 
are many things that can change for an employer over a two-year period. 
As examples of events necessitating such flexibility, commenters cited 
gaining and losing customers to competitors and changing focus from one 
product line to another. A commenter stated that business plans are 
confidential in nature and employers may not be comfortable releasing 
detailed information to external sources, which will likely lead to the 
creation of training plans that are limited to generic, high level job 
descriptions. The commenter suggested instead that the employer provide 
a ``job profile document detailing employee roles and responsibilities 
and an organization structure chart,'' which would be updated in light 
of ``any significant changes in job profile or positions during the 
course of OPT.''
    Another commenter stated that instead of requiring a training plan, 
DHS should send periodic SEVIS reports to employers and require the 
employers to verify that they still employ the listed students. The 
commenter suggested that DHS also consider creating an employer portal 
to allow STEM OPT employers to verify and update information as 
required. Another commenter recommended that DHS replace the proposed 
written Mentoring and Training Plan with an additional employer 
attestation that training will be provided consistent with similarly 
situated new hires, with the proviso that the training will relate 
directly to the STEM field. One commenter recommended that all training 
plan requirements be better streamlined with already existing 
requirements contained on the Form I-20 Certificate of Eligibility.
    One commenter stated that it was ``impractical'' to impose the 
proposed Mentoring and Training Plan requirements on ``more seasoned 
trainees'' who have completed one year of OPT and who are seeking a 
STEM OPT extension under the proposed rule. This commenter suggested 
exempting students who plan to use their STEM OPT extension to continue 
their 12-month post-completion OPT with the same employer. The 
commenter recommended that DHS look to H-1B regulations as an example 
of a regulatory scheme that exempts certain individuals with advanced 
degrees from certain requirements and obligations.
    Response. DHS disagrees that employers' standard training practices 
are always sufficient for ensuring that the training needs of STEM OPT 
students are met. The STEM OPT extension program, including its 
training plan requirement, is designed to be a work-based learning 
opportunity that meets specific long-term goals related to the 
student's course of study. Existing training practices may or may not 
ensure that such goals are met, and thus the fact that an employer has 
training practices is insufficient on its own to demonstrate that a 
practical training opportunity will support the central purpose of this 
rule.
    For this reason, DHS rejects the alternative suggestions by 
commenters to replace the training plan requirement with an attestation 
related to employers' existing training practices, the submission of 
periodic SEVIS reports, or a revised Form I-20 Certificate of 
Eligibility. As discussed, the main objective of the training plan 
requirement is to ensure that the work that the STEM OPT student 
undertakes is ``directly related'' to his or her STEM degree and is 
continuing his or her training in that field. Providing generic job 
descriptions or periodically verifying that the student remains 
employed would not provide sufficient focus on the student's training. 
The training plan requirement aims to elicit the level of detail needed 
to ensure appropriate oversight of the STEM OPT extension. 
Additionally, requiring all participants to use a uniform form ensures 
that minimum requirements are met and makes it easier to evaluate the 
eligibility of an applicant without requiring agency adjudicators to 
familiarize themselves with the peculiarities of different employers' 
records and standards.
    However, in response to commenters' concerns, DHS has modified the 
regulatory text to further ensure that employers may rely on their 
existing training programs to meet certain training plan requirements 
under this rule, so long as such training programs otherwise meet the 
rule's training plan requirements. Under the final rule, the Training 
Plan must, among other things: (1) Identify the goals for the STEM 
practical training opportunity, including specific knowledge, skills, 
or techniques that will be imparted to the student; (2) explain how 
those goals will be achieved through the work-based learning 
opportunity with the employer; (3) describe a performance evaluation 
process; and (4) describe methods of oversight and supervision. The 
rule additionally provides that employers may rely on their otherwise 
existing training programs or policies to satisfy the requirements 
relating to factors (3) and (4) (performance evaluation and oversight 
and supervision of the STEM OPT student), as applicable. These 
provisions are intended to make it easier for employers to refer to 
existing training programs or policies when completing the Training 
Plan, as can be seen in Section 5 of the Training Plan form.
    DHS has also made a number of changes to the Training Plan form for 
the same reason. For example, instead of requiring specific information 
about the individual supervisor's qualifications to provide supervision 
or training, the final Training Plan prompts the employer to explain 
how it provides oversight and supervision of individuals in the STEM 
OPT student's position. DHS also revised the form to replace the 
reference to a student's supervisor with a reference to the ``Official 
with Signatory Authority.'' Such an official need not be the student's 
supervisor. These modifications are intended to address specific 
comments indicating that the proposed Mentoring and Training plan would 
prevent employers from assigning such students to project rotations and 
``limit them to a single department or reporting relationship.'' DHS 
made these modifications to provide employers with additional 
flexibility in complying with the rule's training plan requirements.
    Moreover, as revised, DHS does not envision anything required in 
the final Training Plan as unnecessarily inhibiting flexibility for 
employers or STEM OPT students. Instead, the standards set forth in the 
rule are intended to ensure that employers meet the STEM OPT extension 
requirements, including demonstrating compliance with the attestations, 
and ensuring that employers possess the ability and resources to 
provide structured and guided work-based learning experiences for the 
duration of the extension. Nothing in the rule prohibits employers from 
incorporating into the Training Plan provisions for project, position, 
or department rotations that directly relate to STEM students' fields 
of study, provided there will be appropriate supervision during each 
rotation and the employer otherwise meets all relevant requirements. To 
the extent new circumstances arise and such a change was not 
contemplated in the initial Training Plan, the employer may, working 
with the student, prepare and submit a modified Training Plan to the 
student's DSO. Additionally, with regard to concerns relating to an 
employer sharing sensitive information, DHS does not anticipate that 
Training Plans would need to contain a level of detail that would 
reveal business plans.

[[Page 13093]]

    Finally, DHS respectfully disagrees with the notion that students 
who have completed one year of OPT are ``seasoned trainees'' who should 
not be subject to the training plan requirements when seeking an 
extension under the rule. DHS also disagrees that students pursuing a 
STEM OPT extension with the same employer should be exempt from the 
reporting obligations of the rule, including all training plan 
requirements. As discussed, the purpose of the STEM OPT extension is to 
provide practical training to STEM students so they may pursue focused 
research and meaningful projects that contribute to a more complete 
understanding of their fields of study and help develop skills. The 
requirements of the Training Plan are designed to assist students and 
employers in their pursuit of the aforementioned goals.
    Comment. Some commenters stated concerns about the ``mentoring'' 
requirements described in the proposed Mentoring and Training Plan. For 
example, a commenter expressed concern that formalizing mentoring and 
training requirements could hinder students' ability to naturally 
develop mentorships and mentoring relationships, and suggested 
eliminating the proposed Mentoring and Training Plan requirement or, at 
least, aligning the proposed Mentoring and Training Plan requirement 
with current employer practices to minimize compliance burdens. Some 
employers stated that the references to mentoring were so problematic 
that the proposed Mentoring and Training Plan be dropped altogether. 
One commenter stated that many technology companies lack expertise in 
establishing the kind of mentoring program contemplated in the proposed 
rule. The commenter stated further that, because of this, some 
technology companies will likely submit whatever paperwork is necessary 
to demonstrate compliance with the mentoring requirement, without doing 
more. Another commenter suggested eliminating the reference to 
mentoring and instead focusing on ``the relevance of the proposed 
employment to the individual's STEM-related course of study.''
    A number of employers stated that they had long established 
practices concerning mentoring, some formal and some not. Most of these 
comments suggested that what DHS proposed regarding mentoring was 
difficult to understand in the context of existing business practices. 
For example, one company that said it was strongly committed to ``the 
importance and benefits of well-designed mentoring programs,'' asserted 
that the proposed rule failed to define mentoring. The commenter 
explained that:

    some mentoring relationships are highly structured in content 
and regularity of interactions, while others are more ad hoc and 
organic in nature. In many circumstances, it is the mentee who takes 
responsibility for leading the interactions; in others, it is the 
mentor or the organization who structures the engagement.

    This commenter believed it would not be feasible for DHS to provide 
sufficient certainty to employers about their mentoring 
responsibilities and obligations. A comment co-signed by ten 
associations representing a variety of industries, as well as small, 
medium, and large businesses and professionals, stated that the 
proposed Mentoring and Training Plan would ``in many cases force 
companies to make drastic changes to their current mentoring 
programs.''
    Response. In light of the commenters' concerns, DHS has removed 
reference to, and the requirements related to, mentoring in the final 
rule and associated Training Plan. For instance, DHS has removed the 
reference to ``mentoring'' in Form I-983 and re-designated it as the 
``Training Plan for STEM OPT Students.'' The Training Plan, however, 
continues to serve the core goal of the practical training program: to 
augment a student's learning and functionality in his or her chosen 
field of interest.
    DHS disagrees with the suggestion that technology companies do not 
have robust training capabilities or a commitment to training and skill 
development. This comment is directly contradicted by the many comments 
filed by employers asking that company policies on training, mentoring, 
and evaluation already in place be permitted as an alternative to the 
training plan requirements in the proposed rule.
    Comment. A few commenters suggested that DSOs should not be 
required to issue a new STEM OPT recommendation in SEVIS before a 
student can change employers during the STEM OPT extension period. A 
university recommended that it should be sufficient for the student to 
submit the new Training Plan to the DSO, along with an update to the 
employer address information in SEVIS, as specified under current SEVIS 
reporting requirements. Similarly, a school official asked whether an 
update in STEM employment information, rather than a recommendation, 
would suffice for such purposes. The commenter stated that a 
recommendation should be required only if the DSO is expected to review 
the content of the Training Plan, which the commenter suggested should 
be outside the DSO's duties. The commenter stated that the requirement 
for a new DSO recommendation each time the student changes employers 
``implies'' that the STEM extension is employer specific. The commenter 
suggested that STEM OPT should not be tied to a specific employer, but 
should be tied solely to the student's field of study. Another 
commenter stated that the requirement for DSOs to issue a new STEM OPT 
recommendation served no particular purpose, and that the requirement 
could increase the likelihood that an employer might choose to hire a 
STEM OPT student over a U.S. worker. According to the commenter, such a 
STEM OPT student would be less likely to change employers during the 
STEM OPT period, which could lead to exploitation of the student by the 
employer.
    Response. To ensure proper oversight and promote the continued 
integrity of the STEM OPT extension program, DHS declines to make the 
changes requested. When a student changes employers, the requirement to 
submit a new Training Plan to the DSO and have the DSO update SEVIS 
with a new recommendation is necessary for ensuring that DHS has the 
most up-to-date information on F-1 students. The requirement also 
ensures that STEM OPT students are receiving the appropriate training 
and compensation, which in turn helps to protect such students and U.S. 
workers. As noted previously, SEVIS is the real-time database through 
which the Department tracks F-1 student activity in the United States. 
Timely review by the DSO of the new Training Plan and timely updating 
of SEVIS with certain information from that form substantially assists 
DHS with meeting its statutory requirements related to F-1 students.
    DHS also does not agree that the requirements related to changing 
employers, including obtaining a new DSO recommendation, are so 
burdensome that they would cause a STEM OPT student to stay with an 
employer that is exploiting him or her. Among other things, this rule 
provides a substantial amount of time for students to find new 
practical training opportunities. And DHS anticipates that in most 
cases, DSOs will be able to review a newly submitted Training Plan and 
issue a new recommendation for a STEM OPT extension in a matter of 
days. For this reason, when a student changes employers, the rule 
requires a new Training Plan, new DSO recommendation, and update to 
SEVIS. DHS acknowledges that the potential exists for a student to 
begin a new

[[Page 13094]]

practical training opportunity with a new employer less than 10 days 
after leaving the student's prior employer; in such a case, the student 
must fulfill his or her reporting obligations by submitting a new 
Training Plan, but can begin the new practical training opportunity 
only after submitting the new plan.
    Comment. Some commenters expressed concern that various 
requirements and timeframes provided in the rule were inconsistent with 
each other. A university, for example, submitted a comment referencing 
a provision in the proposed rule that required STEM OPT students who 
changed employers to submit, within 10 days of beginning their new 
practical training opportunities, a new Mentoring and Training Plan to 
their DSOs, and subsequently obtain new DSO recommendations. The 
commenter believed this timeline contradicted the reporting obligation 
contained in another provision, which required such students to report 
changes in certain biographic and employment information to their DSOs 
``within 10 days'' of the change in employer. The commenter said the 
former requirement implied that STEM OPT students must receive a new 
DSO recommendation before beginning new employment, while ignoring the 
fact that DSOs are given 21 days in which to report any such change of 
employer. The commenter further noted that DSOs depend on this 21-day 
reporting window to complete administrative tasks, and the commenter 
urged DHS to amend the proposed regulations to fix the above 
inconsistencies.
    Response. DHS does not see a conflict between (1) the requirement 
that a STEM OPT student must submit a new Training Plan to the DSO 
within 10 days of starting a new practical training opportunity with a 
new employer and (2) the separate, general requirement that a STEM OPT 
student report to the DSO within 10 days certain changes in biographic 
and employment information. Nor does DHS see a conflict between these 
requirements and the DSO's reporting period for inputting some of this 
information into SEVIS.
    The two student reporting requirements cited by the commenter will 
frequently apply in different circumstances, and serve different 
purposes. The requirement to submit a new training plan applies only 
when the student begins a new practical training opportunity with a new 
employer, and is intended to ensure that each STEM OPT extension will 
be accompanied by an accurate, up-to-date Training Plan. The 10-day 
period for the requirement balances the burden of completing the 
Training Plan on a timely basis against the important benefits derived 
from the preparation and submission of such plans. In contrast, the 
general student reporting requirement (which also existed in the 2008 
IFR) applies whenever a STEM OPT student experiences a loss of 
employment, as well as a change in the student or employer's name or 
address.
    Where a student begins a new practical training opportunity with a 
new employer less than 10 days after leaving the student's prior 
employer, the student may fulfill both reporting obligations by 
submitting a new Training Plan. In cases where the period of time 
between employers is longer than 10 days, the student must first report 
the loss of employment to the DSO, and later submit a new Training 
Plan. In either case, the DSO's SEVIS obligations will begin after the 
DSO receives the information from the student. Again, these two student 
reporting requirements serve different purposes; both reports will 
serve important functions at the time they are made.
    Comment. One commenter suggested that requiring both the student 
and the employer to attest that the job offer is directly related to 
the student's STEM degree is redundant, and that the employer's 
attestation should be sufficient for this purpose. Another commenter 
suggested that the student and employer's attestation together should 
be sufficient, and that as a result, DSO review would be superfluous. 
Some commenters implied that because the proposed rule required that 
training plans be completed by STEM OPT students and their employers, 
those plans would concern work-related training and not training of an 
academic nature.
    Response. DHS believes that it is appropriate to document that both 
the student and the employer agree that the practical training 
opportunity is directly related to the student's degree. The need for 
employer and student attestations helps ensure compliance by both 
relevant parties. And such attestations are not overly burdensome on 
either the student or the employer.
    With respect to comments about the academic nature of the required 
Training Plans, DHS agrees that such plans will relate to practical 
training experiences, rather than academic coursework. But that is the 
intent of the rule: to allow students to apply their academic knowledge 
in practical, work-based settings. The Training Plan in this final rule 
helps ensure that the purpose of the rule is met, by clarifying the 
direct connection between the student's STEM degree and the practical 
training opportunity.
    Comment. DHS received a number of comments concerning the proposed 
rule's document retention requirements. Some commenters suggested that 
in order to reduce the administrative and paperwork burdens on 
employers, DHS should allow employers to use electronic signatures, as 
well as electronic storage methods to maintain required records. 
Commenters noted that allowing such options would be consistent with I-
9 completion and retention requirements. Some commenters requested that 
employers and DSOs specifically be allowed to electronically submit and 
retain the training plans required by the proposed rule,
    DHS also received comments on the duration of the proposed rule's 
retention requirements. One commenter stated that a 1-year retention 
requirement, rather than a 3-year requirement, would be more feasible. 
Another commenter recommended that, to mitigate the substantial 
investment of time required of schools with many STEM students, no 
electronic form of the proposed Mentoring and Training Plan should be 
required until the form is provided electronically through the SEVIS 
system with batch functionality. The commenter also requested that 
enough time be given to third-party software providers so that they may 
develop an equivalent upgrade to allow batch uploads of the forms to 
SEVIS.
    One commenter also stated that if the student's school must 
maintain the training plan, the school then becomes responsible for 
maintaining sensitive information about the employer. The commenter did 
not describe which data elements it considered particularly sensitive. 
The commenter stated that the requirement to maintain this information 
constituted an ``undue burden'' for the school and a liability for both 
the employer and the school ``in an age when data hacking and data 
breaches'' are common occurrences. The commenter also noted that DSOs 
would be ``holding'' training plans during a student's STEM OPT period, 
which, in some cases, would be unrelated to any similar degree 
conferred by the DSO's school.
    Response. DHS clarifies that the STEM OPT student's educational 
institution may retain the Training Plan using either paper or 
electronic means. DHS acknowledges the burdens inherent with requiring 
DSOs to retain information on students who may have already graduated. 
Because DSOs must already meet 3-year retention

[[Page 13095]]

requirements for other documents concerning F-1 students, this 
requirement is already a common standard with which DSOs have 
experience. Under 8 CFR 214.3(g)(1), institutions that educate F-1 
students must keep records indicating compliance with reporting 
requirements for at least three years after such students are no longer 
pursuing a full course of study.
    DHS understands the commenter's concern about the potential 
sensitivity of certain information contained in training plan 
documents. However, DHS has made efforts to ensure that the final 
Training Plan requires only information necessary for the Department to 
carry out the STEM OPT extension program. DHS notes that it is 
developing a portal that, once fully deployed, will allow students to 
directly input training plans into SEVIS for DSO review, thus reducing 
burdens and potential liability on the part of DSOs and their 
institutions. DHS plans to have the first stages of this portal 
operational by the beginning of 2017. In the interim, DHS does not 
anticipate a significant increase in data storage costs for employers 
as a result of this rule, and the Department remains open to 
implementing additional technology improvements to reduce 
administrative processing and paperwork.
    Under this final rule, the student's educational institution 
associated with his or her latest OPT period must ensure that SEVP has 
access to the student's Training Plan and associated student 
evaluations. Such documents may be retained in either electronic or 
hard copy for three years following the completion of the student's 
practical training opportunity and must be accessible within 30 days of 
submission to the DSO.
ii. DHS and DSO Review of the Training Plan
    Comment. DHS received a number of comments concerning the need to 
review training plans and the respective roles that DHS and DSOs would 
play in such review. Some commenters stated that DSOs are best 
positioned to evaluate the connection between a practical training 
opportunity and a student's field of study, and requested confirmation 
that DHS does not intend to second-guess routine approvals of training 
plans by DSOs. Some commenters requested that DHS clarify the relevant 
criteria and standards that USCIS and DSOs should apply when reviewing 
such plans. Some commenters expressed uncertainty about how a 
qualitative review of training plans would or should be conducted. Such 
commenters indicated that unless additional standards and instructions 
are given, DSO review of such plans would simply consist of making sure 
each field on the form is completed. A commenter stated that DSOs 
should not be expected to become experts with respect to each 
individual student, nor should they be burdened with the weighty 
responsibility of fraud detection.
    One commenter stated that it was unclear how a DSO would know, 
prior to the commencement of the STEM OPT extension, whether the 
employer had failed to meet the program's regulatory requirements. The 
commenter recommended that DHS clarify the applicable standards for DSO 
review of training plans and ensure that such standards are appropriate 
for DSOs, given that they are experts neither in each area of STEM 
education nor in detecting fraud. The commenter recommended that the 
level of review be similar to that required for Labor Condition 
Applications submitted to the Department of Labor. According to the 
commenter, such applications require review only for completeness and 
obvious errors or inaccuracies.
    A commenter stated that the proposed rule did not include standards 
for determining whether a STEM OPT student is being ``trained,'' rather 
than simply working. According to the commenter, this would result in 
every training plan being approved whether or not a bona fide 
educational experience is being achieved. This commenter was also 
concerned that DSOs have an inherent conflict of interest in this 
regard. According to the commenter, DSOs ``have every incentive, and 
likely pressure from their administrations, to approve all work 
permits.'' The commenter concluded that the proposed rule's focus on 
``training'' and ``educational experience'' will not prevent 
participants from seeing OPT as a work permit and treating it as such.
    Some commenters requested that USCIS adjudicators make the final 
assessment as to the sufficiency of training plans, including because 
such plans are central to qualifying for STEM OPT extensions and 
employment authorization. Other commenters asked for clear guidance and 
coordination with respect to USCIS's review of training plans. 
Commenters expressed concern that in the absence of clear standards, 
USCIS adjudicators may issue erroneous Requests for Evidence (RFEs) or 
deny applications without appropriate due process. Some commenters 
expressed concerns about the effect of the training plan requirement on 
USCIS processing times. Another commenter stated that USCIS review of 
training plans would be insufficient, because ``DHS employees have no 
expertise in evaluating what is, and is not, practical training.''
    Response. DHS agrees with the commenters' suggestions to issue 
clear guidance for DSOs and USCIS adjudicators with respect to the 
adjudication of Training Plans. As noted above, DHS has revised for 
clarity the regulatory text describing the requirements governing 
Training Plans, and has also revised the form itself. DHS is aware that 
the new requirements will also require training and outreach to ensure 
that all affected parties understand their role in the process.
    DHS also clarifies that DSO approval of a request for a STEM OPT 
extension means that the DSO has determined that the Training Plan is 
completed and signed, and that it addresses all program requirements. 
DHS anticipates that such review will be fairly straightforward. The 
Department does not expect DSOs to possess technical knowledge of STEM 
fields of study. When reviewing the Training Plan for completeness, the 
DSO should confirm that it (1) explains how the training is directly 
related to the student's qualifying STEM degree; (2) identifies goals 
for the STEM practical training opportunity, including specific 
knowledge, skills, or techniques that will be imparted to the student, 
and explains how those goals will be achieved through the work-based 
learning opportunity with the employer; (3) describes a performance 
evaluation process to be utilized in evaluating the OPT STEM student; 
and (4) describes methods of oversight and supervision that generally 
apply to the OPT STEM student. The DSO should also ensure that all form 
fields are properly completed. So long as the Training Plan meets these 
requirements, the DSO has met his or her obligation under the rule.
    DHS also understands commenters' concerns on the ability of DSOs to 
determine whether an employer had failed to meet regulatory 
requirements prior to the commencement of a STEM OPT extension. DHS 
clarifies that DSOs are not required to conduct additional outside 
research into a particular employer prior to making a STEM OPT 
recommendation. In making such a recommendation, DSOs should use their 
knowledge of and familiarity with the F-1 regulations, including the 
STEM OPT requirements finalized in this rule. DHS notes that a student 
often may be requesting to extend a training opportunity already 
underway with an employer for which he or she will have already 
received training, which the DSO will have previously recommended

[[Page 13096]]

and of which he or she will already have some record. Where this is not 
the case, the DSO can still rely, as he or she can in all cases, upon 
the information provided on the Training Plan and any other information 
the DSO believes to be pertinent to his or her recommendation decision, 
at the time he or she makes the recommendation.
    DHS also disagrees with comments suggesting that DSOs have 
conflicts of interest with respect to reviewing training plans. Based 
on decades of experience with OPT, DHS has no reason to question the 
integrity of DSOs or their ability to fulfill their obligations 
effectively and maintain the integrity of the STEM OPT extension 
program. The role of DSOs under this program is similar to the role 
they have historically played in the F-1 program.
    DHS also notes that it may, at its discretion, withdraw a previous 
submission by a school of any individual who serves as a DSO. See 8 CFR 
214.3(1)(2). Additionally, under longstanding statutes and regulations, 
SEVP may withdraw on notice any school's participation in the F-1 
student program (or deny such a school recertification) for any valid 
and substantive reason. See 8 CFR 214.4(a)(2). For instance, SEVP may 
withdraw certification or deny recertification if SEVP determines that 
a DSO willfully issued a false statement, including wrongful 
certification of a statement by signature, in connection with a 
student's application for employment or practical training. See id. 
SEVP may take the same action if it determines that a DSO engaged in 
conduct that does not comply with DHS regulations. Id.
    With respect to comments about USCIS's role in the process, DHS 
clarifies that USCIS maintains the discretion to request and review all 
documentation when determining eligibility for benefits. See 8 CFR 
103.2(b)(8)(iii). Accordingly, USCIS may request a copy of the Training 
Plan (if it is not otherwise available) or other documentation when 
such documentation is necessary to determine an applicant's eligibility 
for the benefit, including instances when there is suspected fraud in 
the application.\115\ DHS further clarifies that USCIS would deny an 
Application for Employment Authorization if it finds that any of the 
regulatory standards are not met. DHS believes that the regulatory 
standards are articulated at a sufficient level of particularity for 
this purpose.
---------------------------------------------------------------------------

    \115\ When Training Plans are available through SEVIS, USCIS 
will have real-time access to each plan without needing to issue an 
RFE.
---------------------------------------------------------------------------

    Beyond the clarifications provided above, DHS does not believe it 
is necessary or appropriate to issue significant additional guidance in 
this final rule. Given the many different practical training 
opportunities available to students, it would be cumbersome for DHS to 
define with more particularity the full range of student-employer 
interactions or guided-learning opportunities that may meet the rule's 
requirements. DHS believes that it would be more appropriate to issue 
any necessary guidance separately, as needed. Issuing guidance in this 
manner will allow DHS to promote consistent adjudications while 
allowing for flexibility as issues develop. As such, DHS confirms that 
ICE and USCIS will finalize guidance and provide training to ensure 
that all entities are ready to process requests for STEM OPT extensions 
as soon as possible.
    Comment. Some commenters suggested that employers and students, 
rather than DSOs or DHS, are best positioned to explain how a student's 
STEM degree is related to a practical training opportunity.
    Response. DHS agrees that employers and students must identify the 
relationship between the student's STEM degree and the practical 
training opportunity. This final rule requires the student and employer 
to complete and submit to the DSO a Training Plan that describes this 
relationship (among other things). DHS does not agree, however, that 
students and employers should be solely responsible for determining 
whether a student's STEM degree is directly related to the practical 
training opportunity being offered, as doing so would result in a true 
conflict of interest and lack of accountability.
    Comment. One commenter expressed concern that DSOs will be required 
to check wages through the Department of Labor Foreign Labor 
Certification Data Center's Online Wage Library to ensure that the 
employee is being paid fairly. The commenter stated that such a 
requirement would add additional time to approval of training plans and 
could expose schools to legal action from employers and students who 
submitted plans that were not accepted by the school. The commenter 
also said DSOs would be required to function as de facto USCIS 
adjudicators when approving or denying training plans, and as de facto 
ICE agents when trying to locate a student who has not completed his or 
her 6-month validation report.
    Response. As noted above, the DSO's role with respect to the 
Training Plan for STEM OPT Students is limited. DSOs are not expected 
to conduct independent research to determine whether an employer 
attestation or other information in the Training Plan, including wage 
information, is accurate. Thus, DSOs are not expected to assess the 
wage information. With respect to validation reports, such reports have 
served since 2008 as important confirmations that critical student 
information in SEVIS is current and accurate. When a student fails to 
submit a validation report on a timely basis, however, there is no 
requirement for further action on the part of the DSO. All necessary 
data for determining when a student has failed to submit a validation 
report is contained in SEVIS, and no further action is necessary to 
alert DHS of the student's failure.
iii. Form Fields, Form Number, Form Instructions
    Comment. Some commenters stated that USCIS already has a form 
designated as Form I-910, Application for Civil Surgeon Designation, 
and requested that ICE assign a different form number to the Training 
Plan form. Another commenter suggested that DHS use a form number other 
than I-910 to avoid confusion with the current Form I-901, which all F-
1 students use to pay their SEVIS fees.
    Response. In response to these comments, DHS has revised the number 
for the Training Plan for STEM OPT Students associated with this final 
rule to ``Form I-983.'' This change should prevent confusion among F-1 
students and other stakeholders.
    Comment. As proposed, the Mentoring and Training Plan would have 
required the student to attest that he or she will notify the DSO ``at 
the earliest possible opportunity if I believe that my employer or 
supervisor . . . is not providing appropriate mentorship and training 
as delineated on this Plan.'' Some commenters recommended that the 
student attestation on the Training Plan form be revised to eliminate 
the words ``if I believe'' and ``appropriate'' because they are 
confusing and ask students to make subjective assessments regarding the 
required training and mentoring. Commenters suggested that the student 
should only be required to notify the DSO if the student believes that 
``a gross deviation'' from the training plan has occurred. Another 
commenter stated that this notification requirement was not necessary 
because students are already required to report any interruption of 
employment.

[[Page 13097]]

    Response. DHS believes that the student's subjective assessment 
matters. If a student believes that the employer is not providing the 
practical training opportunity described in the Training Plan, the 
student should report the matter to his or her DSO. DHS considers 
students in this program to be capable of self-reporting in a 
responsible manner. DHS believes that relying upon students' reasonable 
judgment in the student attestation will best protect the well-being of 
students and the integrity of the STEM OPT extension. Additionally, DHS 
clarifies that this attestation element does not reference, and is not 
intended to apply to, interruptions of employment. Students and 
employers that are concerned about the risk of frequent reporting of 
the student's assessment may be able to avoid potential issues by 
clearly setting forth mutual expectations in the Training Plan.
    Comment. As proposed, the Mentoring and Training Plan included an 
attestation by the student that he or she understands that DHS may 
deny, revoke, or terminate a student's STEM OPT extension if DHS 
determines the student is not engaging in OPT in compliance with law, 
including if DHS determines that the student or his or her employer is 
not complying with the Training Plan. One commenter suggested removing 
this attestation because, according to the commenter, it is vague and 
overly harsh and holds the student accountable for the employer's 
noncompliance. The commenter also stated that because the proposed rule 
allowed for 150 days of authorized unemployment, ``there should be no 
further immigration repercussion to the student if they need to 
interrupt STEM OPT due to lack of appropriate mentorship.''
    Response. DHS disagrees with the commenter. The attestation serves 
as an important reminder to the student that failure to comply with the 
regulatory requirements related to the STEM OPT extension may result in 
a loss of status. Moreover, contrary to the commenter's understanding, 
the attestation does not state or imply that DHS would take action 
against students who become unemployed, including because an employer 
has failed to comply with program requirements. A period of 
unemployment, on its own, will not affect the STEM OPT student's status 
so long as the student reports changes in employment status and adheres 
to the overall unemployment limits.
    Comment. One commenter recommended that the phrase ``SEVIS ID No.'' 
on the first page of the form (Section 1) should read ``Student SEVIS 
ID No.'' for clarity.
    Response. DHS agrees that the suggested change increases clarity 
and has made this change to the Training Plan for STEM OPT Students.
    Comment. The same commenter stated that the ``School Name and 
Campus Name'' section should be reorganized for additional clarity. 
Specifically, the commenter stated that the form should include a 
section for ``School that Recommended Current OPT'' and a separate 
section for ``School Where Qualifying Degree was Earned'' in order to 
cover students who are using previously obtained STEM degrees as the 
basis for a STEM OPT extension.
    Response. DHS agrees and the form has been updated to clarify 
information for previously obtained STEM degrees.
    Comment. A commenter requested that DHS clarify the question in 
Section 3 of the proposed Mentoring and Training Plan, which requests 
the number of full-time employees that work for the employer. The 
commenter also suggested that DHS add the Web site address for North 
American Industry Classification System (NAICS) codes (http://www.census.gov/eos/www/naics) to the instructions for the relevant 
question on NAICS codes in Section 3.
    Response. DHS agrees with both of these suggestions. To increase 
clarity, DHS has revised the question concerning full-time employees to 
read, ``Number of full-time employees in the U.S.'' DHS also has 
amended the form instructions to Section 3 to add the Web site for 
NAICS codes.
    Comment. Commenters suggested eliminating the ``Training Field'' 
box in Section 5 of the proposed Mentoring and Training Plan. According 
to the commenters, a detailed description of the training opportunity 
was already required in other fields and it was not clear what the 
``Training Field'' box added given that there was also a separate box 
for ``Qualifying Major.''
    Response. DHS agrees with the commenter and has removed the field 
from the final version of the Training Plan.
    Comment. One commenter sought clarification on whether all fields 
in the Mentoring and Training Plan were mandatory. The commenter also 
sought clarification on what an employer should do if one or more 
fields were not applicable to that employer.
    Response. DHS clarifies that employer information should be filled 
in as applicable. If an employer does not have a Web site, for example, 
``N/A'' will suffice in the field requesting the employer Web site.
    Comment. One commenter stated that the form requirements should be 
included in the regulatory text. The commenter noted that certain 
sections of the proposed Mentoring and Training Plan required parties 
to certify that they would make notifications ``at the earliest 
available opportunity,'' but that such a requirement was not included 
in the regulatory text itself.
    Response. In response to this comment, DHS has amended the final 
regulatory text to more clearly reflect the responsibilities of 
participating parties. The Department believes these requirements are 
now sufficiently clear.
iv. Training Plan Obligations and Non-Discrimination Requirements
    Comment. One comment stated that ``[t]he proposed OPT STEM hiring 
and extension process would also constitute national origin 
discrimination, as the program is clearly intended to benefit aliens 
whose nationality is among one of the nations for which employment 
based immigrant visas are continuously oversubscribed, in particular 
nationals of India and China.''
    Response. DHS rejects the suggestion that the STEM OPT extension 
program will benefit individuals based on their national origin or 
nationality. The program is equally available to all F-1 students with 
a qualifying STEM degree and has neither quotas nor caps for nationals 
of any given country or region. The comment also offers no evidence to 
support the statement that the rule ``is clearly intended to benefit'' 
individuals based on nationality.
    Comment. Some commenters stated that the proposed rule would 
``induce'' employers and universities to discriminate against U.S. 
workers in violation of 8 U.S.C. 1324b and would ``impermissibly 
facilitate prohibited employment-related discrimination on the basis of 
alienage and national origin.'' These commenters cited to various 
statutory provisions (42 U.S.C. 1981(a); 42 U.S.C. 2000e-2(a),(d); and 
8 U.S.C. 1324b(a)(1)(A) and (B)) and suggested that the Department's 
proposed Mentoring and Training Form would violate these Federal anti-
discrimination laws. Commenters stated that the rule would discriminate 
against U.S. citizen and lawful permanent resident students because it 
would not require employers to offer an identical ``program'' to such 
students. One commenter also likened the proposed Mentoring and 
Training Plan to the execution of a contract in violation of 42 U.S.C. 
1981(a), which prohibits discrimination in making contracts. The 
comment cited to case law purporting to support the commenter's 
argument, but

[[Page 13098]]

did not explain how the plan violated the statute.
    Response. As a preliminary matter, the Training Plan for STEM OPT 
Students requires an employer to certify that the training conducted 
pursuant to the plan complies with all applicable Federal and State 
requirements relating to employment. This broad certification 
encompasses compliance with all of the laws the commenters referenced.
    DHS also disagrees with the apparent premise behind the commenters' 
arguments. That premise appears to be that the rule will require or 
inappropriately induce U.S. employers to provide benefits to F-1 
students that are not provided to its other employees, including U.S. 
workers. Neither the rule nor the Training Plan, however, requires or 
encourages employers to exclude any of their employees from 
participating in training programs. And insofar as an employer may 
decide to offer training required by the regulation only to STEM OPT 
students, doing so does not relieve that employer of any culpability 
for violations of section 274B of the INA, 8 U.S.C. 1324b, or any other 
federal or state law related to employment.
    Moreover, the training plan requirement is not motivated by any 
intention on the part of DHS to encourage employers to treat STEM OPT 
students preferentially. Rather, DHS is requiring the Training Plan to 
obtain sufficient information to ensure that any extension of F-1 
student status under this rule is intended to augment the student's 
academic learning through practical experience and equip the student 
with a broader understanding of the selected area of study and 
functionality within that field. The Training Plan also serves other 
critical functions, including, but not limited to, improving oversight 
of the STEM OPT extension program, limiting abuse of on-the-job 
training opportunities, strengthening the requirements for STEM OPT 
extension participation, and enhancing the protection of U.S. workers. 
By documenting the student's participation in a training program with 
the employer, the Training Plan provides information necessary for 
oversight, verification, tracking, and other purposes.
    The training plan requirement does not discriminate against U.S. 
students or anyone else, or create a discriminatory contract (even 
assuming that it creates a contractual obligation at all). In pertinent 
part, 42 U.S.C. 1981(a) provides that ``[a]ll persons within the 
jurisdiction of the United States shall have the same right in every 
State and Territory to make and enforce contracts.'' The commenter that 
raised concerns related to this provision did not identify any feature 
of the proposed rule that would deny or otherwise impair any person's 
rights ``to make and enforce contracts'' or any other rights described 
in the statute. The statute has no bearing on the training plan 
requirement in this rule.

G. Application Procedures for STEM OPT Extension

1. Description of Final Rule and Changes From NPRM
    Under the rule, a student seeking an extension must properly file a 
Form I-765, Application for Employment Authorization, with USCIS within 
60 days of the date the DSO enters the recommendation for the STEM OPT 
extension into the SEVIS record. The 2008 IFR had previously 
established a time period of 30 days after the DSO recommendation for 
the filing of the Application for Employment Authorization. As proposed 
in the NPRM, DHS believes the longer 60-day application period will, 
among other things, reduce the number of USCIS denials of such 
applications that result from expired Form I-20 Certificates of 
Eligibility, the number of associated data corrections needed in SEVIS, 
and the number of students who would need to ask DSOs for updated 
Certificates of Eligibility to replace those that have expired. Under 
this rule, the ``time of application'' for a STEM OPT extension refers 
to the date that the Application for Employment Authorization is 
properly filed at USCIS.
2. Public Comments and Responses
    Comment. Several commenters agreed with DHS's assessment in the 
proposed rule that no changes to Form I-765, Application for Employment 
Authorization, are needed. These commenters thought that the 
application form is clear and that any minor changes or clarifications 
(such as the regulatory cite included on the form) should be 
incorporated into the instructions to the application rather than into 
the application itself. Many commenters also agreed with DHS's proposal 
to extend the period of time to file the Application for Employment 
Authorization from 30 to 60 days from the date that the DSO enters the 
STEM OPT extension recommendation in SEVIS. Some of these commenters 
stated that it can be challenging for DSOs and students to meet the 
current 30-day deadline, as STEM OPT students are already working at 
the time of application and may no longer be as close in proximity or 
contact with their DSOs as they were prior to starting practical 
training. Commenters also stated that the 60-day filing deadline would 
provide greater flexibility for students and likely reduce the workload 
of DSOs, who would otherwise need to reissue Form I-20 Certificates of 
Eligibility to students whose forms have expired, as well as reduce the 
number of Applications for Employment Authorization that need to be 
filed. Some commenters so strongly supported the 60-day deadline that 
they requested it apply to all students requesting OPT in any academic 
field, noting that having two different application filing windows 
serves no useful purpose and also has the potential to confuse both 
students and adjudicators.
    Response. DHS agrees that no revisions to the Application for 
Employment Authorization are needed and that any minor revisions should 
be incorporated into the form instructions. DHS also appreciates 
commenters' support for the proposed 60-day filing period for students 
to file their Application for Employment Authorization after the DSO 
enters the STEM OPT extension recommendation in SEVIS. This final rule 
includes this proposal. As noted in the proposed rule, the longer 
filing window addresses problems that resulted from expiration of Form 
I-20 Certificates of Eligibility and reduces the need for data 
corrections in SEVIS. DHS also clarifies that this change only applies 
to STEM OPT extensions. Changing the 30-day filing period for students 
seeking a 12-month period of post-completion OPT is outside the scope 
of this rulemaking.
    Comment. One commenter advocated for students to be able to file 
only one Application for Employment Authorization to cover the entire 
OPT period, including the 12-month post completion period and the 24-
month STEM OPT extension period. In support of this suggestion, the 
commenter noted that the application form already requires the 
applicant to reveal all previously filed Applications for Employment 
Authorization and provides an opportunity to request a STEM OPT 
extension. The commenter also suggested that such form should be 
available to request a second STEM OPT extension. Another commenter 
requested that the $380 fee for filing Applications for Employment 
Authorization not apply to students seeking STEM OPT extensions. The 
commenter characterized the fee as generally a ``heavy burden'' for 
students, and as an ``unreasonable'' burden for those students who 
failed to meet the eligibility requirements for reasons beyond their 
control.

[[Page 13099]]

    Response. DHS believes that it would be unwieldy and potentially 
confusing to allow a student to apply for a STEM OPT extension as part 
of the student's application for initial post-completion OPT. The 
requirement for a separate application allows the student to engage in 
an initial period of post-completion OPT without requiring a student 
and employer to complete a full Training Plan a year in advance of the 
student's STEM OPT extension. The requirement for a separate 
application also allows DHS to consider program eligibility closer in 
time to the start of the student's STEM OPT extension.
    In regard to the fee for the associated Application for Employment 
Authorization, DHS declines to exempt certain students from the filing 
fee, which generally applies to all such applications filed by F-1 
students. As noted above, each application for STEM OPT requires DHS to 
consider the student's eligibility under the applicable regulations at 
the time of application.
    Comment. Some commenters expressed concern that USCIS officers 
adjudicating Applications for Employment Authorization from STEM OPT 
students would not have sufficient training on the contents or veracity 
of the proposed Mentoring and Training Plan to determine whether and 
how it should affect the student's eligibility for a STEM OPT extension 
and attendant employment authorization. These commenters questioned 
whether the proposed plan was necessary for the adjudication of 
Applications for Employment Authorization, particularly because USCIS 
officers are not trained career counselors. In contrast, some 
commenters requested that USCIS officers expand the scope of the 
adjudication of such applications. Such requests included having USCIS 
officers make evaluations of a prior institution's accreditation status 
and the student's proposed Mentoring and Training Plan, as such 
information is not related to the student's current academic program 
and is not widely available.
    Response. DHS appreciates commenters' concerns about appropriate 
training for USCIS officers and assures the public that USCIS will 
provide appropriate guidance and training resources for its 
adjudicators. Adjudicators will be equipped with guidance that address, 
among other issues, whether the submitted evidence is sufficient to 
establish eligibility for employment authorization; what to do when the 
applicant has not provided sufficient evidence; and what information 
should be requested in an RFE or Notice of Intent to Deny. Finally, in 
this final rule, USCIS confirms that adjudicators have the discretion 
to request a copy of the Training Plan, in addition to other 
documentation, when such documentation is necessary to determine an 
applicant's eligibility for the STEM OPT extension, including instances 
where there is suspected fraud in the application.
    Comment. An advocacy organization recommended that DHS publicly 
disclose raw data gathered from Applications for Employment 
Authorization. The commenter argued that this disclosure would improve 
transparency and enhance the ability of policymakers and advocates to 
ensure fair treatment and compliance with these programs.
    Response. To the extent the commenter is seeking data from all 
filed Applications for Employment Authorization, and not just from STEM 
OPT students, the request is well outside the scope of this rulemaking. 
With respect to applications filed by STEM OPT students, even assuming 
such a request is within the scope of this rule, DHS declines to 
affirmatively publish all raw data gathered from such applications. 
Among other things, the application contains sensitive personally 
identifiable information, and blanket public disclosure would violate 
applicable privacy laws and policies. Relevant information related to 
the STEM OPT extension program may be available through the FOIA 
process. The USCIS centralized FOIA office receives, tracks, and 
processes all USCIS FOIA requests to ensure transparency within the 
agency. Instructions on how to submit a FOIA request to USCIS are 
available on-line at https://www.uscis.gov/about-us/freedom-information-and-privacy-act-foia/uscis-freedom-information-act-and-privacy-act.
    Comment. One commenter sought clarification on whether relevant 
changes to the Application for Employment Authorization and SEVIS will 
be completed by the date that this rule goes into effect. The commenter 
also asked whether these changes would affect the SEVIS releases 
scheduled for November 2015 and spring 2016.
    Response. DHS is not making any changes, as a result of this 
rulemaking, to the Application for Employment Authorization; rather, 
minor changes have been included in the form instructions. The 
Application for Employment Authorization and its instructions are 
available on USCIS' Web site (http://www.uscis.gov/i-765), where users 
can also find information about filing locations and filing fees. 
SEVIS, including planned releases, will not be affected by the minor 
changes to the form instructions.
    Comment. An individual commenter requested a change to the proposed 
rule's provision allowing F-1 students to file for a STEM OPT extension 
prior to the end of their initial 12-month period of post-completion 
OPT. The commenter suggested that DHS also allow students to apply for 
a STEM OPT extension up to 60 days following the end of the initial OPT 
period. The commenter stated that this change would align the provision 
with the application period for initial post-completion OPT, in which a 
student can file an application up to 60 days following graduation.
    Response. DHS declines to adopt the commenter's recommendation. The 
current requirement to properly file the request for a STEM OPT 
extension prior to the end of the initial period of post-completion OPT 
allows sufficient time for the F-1 student to apply for the extension 
and is administratively convenient as it ensures continuing employment 
authorization during the transition from the initial OPT period to the 
STEM OPT extension period. The requirement thus helps prevent 
disruption in the student's employment authorization as the student 
transitions from his or her initial post-completion OPT period to the 
STEM OPT extension period.
    Comment. One commenter requested clarification on whether a student 
who violates his or her F-1 status during a STEM OPT extension period 
may apply for reinstatement to F-1 status under 8 CFR 214.2(f)(16) if 
the status violation resulted from circumstances beyond the student's 
control. The commenter also asked whether such a student would be able 
to continue working while the reinstatement application is pending.
    Response. A student who violates his or her F-1 status during the 
STEM OPT extension period may be granted reinstatement to valid F-1 
status if he or she meets the regulatory requirements. See 8 CFR 
214.2(f)(16). Importantly, in the STEM OPT context, the student will 
need to establish that the status violation resulted from circumstances 
beyond the student's control. The student, however, will not be able to 
continue working during the pendency of the reinstatement application; 
such employment would be considered unlawful. Moreover, if the 
student's reinstatement application is approved, the student will need 
to file a new Form I-765, Application for Employment Authorization. If 
the Application for Employment Authorization is approved, the period of 
time the student spent out of status will be deducted from his or

[[Page 13100]]

her 24-month STEM OPT extension period.
    Comment. One commenter recommended that the rule increase the time 
period during which a student with a pending STEM OPT application is 
allowed to remain employed. The proposed rule provided an automatic 
extension of employment authorization of up to 180 days upon the timely 
filing of the application for a STEM OPT extension. The commenter 
suggested amending the rule to provide a 240-day period, which the 
commenter believed would be consistent with a similar provision for 
other nonimmigrants who timely file applications for extensions of 
stay.\116\ According to the commenter, employers are familiar with the 
240-day period provided in other contexts and using a common timeframe 
for STEM OPT applications would help employers more efficiently 
maintain their obligations to verify the eligibility of employees to 
work in the United States through the Form I-9 Employment Eligibility 
Verification process. The commenter also noted that the 240-day period 
would better accommodate lengthy USCIS processing times.
---------------------------------------------------------------------------

    \116\ 8 CFR 274a.12(b)(6)(iv) authorizes employment for students 
seeking a STEM OPT extension if they timely file an Application for 
Employment Authorization and such application remains pending. 
Employment is authorized beginning on the expiration date of the 
student's OPT-related EAD and ending on the date of USCIS' written 
decision on the Application for Employment Authorization, but not to 
exceed 180 days. In contrast, 8 CFR 274a.12(b)(20) allows certain 
nonimmigrants (not including F-1 students) whose statuses have 
expired but who have timely filed applications for an extension of 
stay to continue employment with the same employer for a period not 
to exceed 240 days beginning on the date of the expiration of the 
authorized period of stay.
---------------------------------------------------------------------------

    Response. DHS has determined that the current period of up to 180 
days is appropriate and will not adopt the commenters' suggestion to 
lengthen this period. DHS did not propose any changes to this 180-day 
period, which has been in existence since 2008. Employers who hire 
individuals on STEM OPT extensions should thus already be familiar with 
this timeframe. Moreover, given that USCIS' average EAD processing time 
is typically at about the 90-day mark,\117\ the 180-day timeframe 
provides sufficient flexibility in case of unexpected delays. 
Therefore, a longer auto-extension period for EADs is unnecessary.
---------------------------------------------------------------------------

    \117\ For updated processing times, please see ``USCIS 
Processing Time Information,'' available at https://egov.uscis.gov/cris/processTimesDisplay.do.
---------------------------------------------------------------------------

H. Travel and Employment Authorization Documentation of Certain F-1 
Nonimmigrants Changing Status in the United States or on a STEM OPT 
Extension

1. Description of Final Rule and Changes From NPRM
    This final rule includes the 2008 IFR's Cap-Gap provision, which 
allows for automatic extension of status and employment authorization 
for any F-1 student with a timely filed H-1B petition and request for 
change of status, if the student's petition has an employment start 
date of October 1 of the following fiscal year. The measure avoids 
inconvenience to some F-1 students and U.S. employers through a common-
sense administrative mechanism to bridge two periods of authorized 
legal status. As noted previously, the so-called Cap Gap is a result of 
the misalignment of the academic year with the fiscal year.
    This final rule also clarifies that an EAD that appears to have 
expired on its face but that has been automatically extended under 8 
CFR 274a.12(c)(3)(i)(B) is considered unexpired for the period 
beginning on the expiration date listed on the Employment Authorization 
Document and ending on the date of USCIS' written decision on the 
current employment authorization request, but not to exceed 180 days, 
when combined with a Form I-20 Certificate of Eligibility endorsed by 
the DSO recommending the Cap-Gap extension. Otherwise, DHS is 
finalizing the Cap-Gap provision as proposed, but provides 
clarification and explanation below in response to public comments 
regarding status, travel, and employment authorization during a Cap-Gap 
period or a STEM OPT extension.
    Lastly, the final rule clarifies that if a petitioning employer 
withdraws an H-1B petition upon which a student's Cap-Gap period is 
based, the student's Cap-Gap period will automatically terminate. In 
other words, if an employer withdraws the H-1B petition before it is 
approved, the student's automatic extension of the student's duration 
of status and employment authorization under the Cap-Gap provision will 
automatically end, and the student will enter the 60-day grace period 
to prepare for departure from the United States. 8 CFR 214.2(f)(5)(iv).
2. Public Comments and Responses
i. Inclusion of Cap-Gap Relief and End Date of Cap-Gap Authorization
    Comment. Many commenters supported the Cap-Gap provision as 
proposed, noting that it would help the United States attract talented 
international students and bolster the economy. Some stated that Cap-
Gap relief was an important part of the 2008 IFR and requested that it 
be retained because the H-1B visa program is a common mechanism for F-1 
students to transition to long-term employment in the United States. 
According to the commenters, Cap-Gap relief is essential to avoid gaps 
in work authorization between the April filing window for H-1B visas 
and the October 1 start date for most new H-1B beneficiaries who are 
subject to the H-1B cap.
    Some commenters supported Cap-Gap relief for certain F-1 students 
based on the notion that these students have been following immigration 
laws and helping to maintain the United States' position as the world's 
leader in technology and innovation. Other supporters asserted that 
Cap-Gap relief will boost productivity and entrepreneurship and thus 
provide the United States with a competitive advantage in the global 
market. Several commenters stated that the Cap-Gap extension is helpful 
to employers as it avoids disruptions in the workplace caused by the 
students' departure from the United States solely due to a temporary 
gap in status.
    Response. DHS agrees with commenters that the Cap-Gap provision is 
a common-sense administrative measure to avoid gaps in status fully 
consistent with the underlying purpose of the practical training 
program. The Cap-Gap provision is needed to address the inherent 
misalignment of the academic year with the fiscal year. This relief 
measure avoids inconvenience to some F-1 students and U.S. employers by 
bridging short gaps in status for students who are the beneficiaries of 
H-1B petitions.
    Comment. Under the 2008 IFR and as proposed, the Cap-Gap provision 
automatically extends a qualifying student's status and employment 
authorization based on the filing of an H-1B petition and request for 
change of status until the first day of the new fiscal year (October 
1). Some commenters requested that DHS revise the Cap-Gap provision so 
as to automatically extend status and employment authorization ``until 
adjudication of such H-1B petition is complete.'' Commenters stated 
that an extension until October 1 may have been appropriate in the 
past, when H-1B petitions were adjudicated well before that date, but 
current USCIS workload issues and RFE responses can delay such 
adjudications beyond October 1. The result, according to one commenter, 
is that the beneficiary of an

[[Page 13101]]

H-1B petition that remains pending beyond October 1 must stop working 
on that date and wait for a decision. By amending the regulations to 
provide extensions until the date that the H-1B petition is finally 
adjudicated, the commenter noted, a beneficiary could avoid any such 
gaps in status.
    In addition, one commenter requested that DHS clarify the date on 
which the automatic extension of status ends. The commenter stated that 
September 30 would be a more appropriate end date than October 1, as 
the beneficiary's H-1B status would generally become effective on 
October 1.
    Response. DHS recognizes that some cap-subject H-1B petitions 
remain pending on or after October 1; however, in light of the 
importance that DHS places on international students, USCIS prioritizes 
petitions seeking a change of status from F-1 to H-1B. This 
prioritization normally results in the timely adjudication of these 
requests, so the vast majority of F-1 students changing status to H-1B 
do not experience any gap in status.
    The general presumption is that when a nonimmigrant's period of 
authorized stay has expired, he or she must depart the United States. 
However, the Cap-Gap provision provides a special accommodation to F-1 
students who are seeking to change to H-1B status, based on the 
understanding that the academic year of most colleges and universities 
does not align with the fiscal year cycle upon which the H-1B program 
is based. The Cap-Gap provision is based in part on the premise that 
students who seek to benefit from the provision actually qualify for H-
1B status. USCIS is thus concerned that extending the Cap-Gap 
employment authorization beyond October 1, a date by which virtually 
all approvable change-of-status petitions for F-1 students are 
adjudicated by USCIS, would reward potentially frivolous filings. The 
October 1 cut-off thus serves to prevent possible abuse of the Cap-Gap 
extension. USCIS will continue to make every effort to complete 
adjudications on all petitions seeking H-1B status for Cap-Gap 
beneficiaries prior to October 1, including by timely issuing RFEs in 
cases requiring further documentation. DHS therefore declines to allow 
students whose H-1B petitions remain pending beyond October 1 to 
continue to benefit from the Gap-Gap extension, primarily because doing 
so would enable students who may ultimately be found not to qualify for 
H-1B status to continue to benefit from the Cap-Gap extension.
    Finally, DHS clarifies that F-1 status for a Cap-Gap beneficiary 
under this provision expires on October 1, consistent with the 
regulatory text at 8 CFR 214.2(f)(5)(A)(vi). However, an individual 
with a timely-filed, non-frivolous H-1B change-of-status petition will 
be considered to be in a period of authorized stay during the pendency 
of the petition. An individual may remain in the United States during 
this time, but is not authorized to work. If an H-1B change-of-status 
petition requesting a start date of October 1 has been approved, the F-
1 status will expire on the same day as the H-1B status begins.
    Comment. Some commenters requested that DHS clarify that OPT 
students whose employment authorization has been extended pursuant to 
the Cap-Gap provision are permitted to change employers. Commenters 
expressed confusion because under the 2008 IFR, and as proposed, the 
regulatory provision authorizing employment for Cap-Gap beneficiaries 
is included in a list of nonimmigrant classifications that are 
authorized for employment ``with a specific employer incident to 
status.'' See 8 CFR 274a.12(b) and (b)(6)(v). Commenters recommended 
that DHS revise the title of the list to eliminate confusion and 
clarify that an F-1 student can change employers between the filing of 
an H-1B petition (generally in April) and the date on which a cap-
subject H-1B petition takes effect (generally on October 1). One of 
these commenters recommended that DHS include Cap-Gap beneficiaries 
under 8 CFR 274a.12(a), which lists categories of aliens who are 
authorized for employment ``incident to status,'' in order to make such 
beneficiaries employment authorized without employer-specific 
restrictions.
    Response. DHS clarifies that there is generally no prohibition 
against an F-1 student's changing of employers during a Cap-Gap period. 
However, F-1 students may only engage in employment that is directly 
related to their major area of study. Moreover, because the list of 
nonimmigrant classifications at 8 CFR 274a.12(b) covers a broad range 
of nonimmigrant classes, DHS believes deletion of the phrase ``with a 
specific employer'' from the regulatory provision would lead to 
confusion. DHS thus declines to adopt this suggestion. Additionally, 
given that the vast majority of commenters supported the Cap-Gap 
provision as proposed, DHS has determined that the provision is 
sufficiently clear and therefore declines to further amend 8 CFR 
274a.12(b)(6)(v) or to place the regulatory provision under 8 CFR 
274a.12(a). Again, an F-1 student may change employers during a Cap-Gap 
period, but must do so in accordance with the OPT regulations (e.g., by 
finding a position directly related to his or her major area of study, 
among other requirements).
    Comment. Some commenters requested clarification about whether the 
Cap-Gap provisions apply to H-1B petitions that are cap-exempt (i.e., 
not subject to the annual numerical cap on H-1B visas). According to 
these commenters, proposed 8 CFR 214.2(f)(5)(vi) appeared to state that 
a STEM OPT student who was the beneficiary of a cap-exempt H-1B 
petition could also extend his or her duration of status and possibly 
employment authorization under the provision, provided the H-1B 
petition was timely filed and requested an employment start date of 
October 1.
    Response. DHS clarifies that the Cap-Gap provision applies only to 
the beneficiaries of H-1B petitions that are subject to the annual 
numerical cap. The purpose of the Cap-Gap provision is to avoid 
situations where F-1 students are required to leave the country or 
terminate employment at the end of their authorized period of stay, 
even though they have an approved H-1B petition that would again 
provide status to the student in a few months' time. Due to the 
realities associated with the H-1B filing season, employers filing H-1B 
petitions for cap-subject F-1 students are effectively required to file 
petitions with start dates of October 1, which allows such employers to 
file the change-of-status petitions with USCIS at the beginning of the 
H-1B filing window (generally April 1 of the preceding fiscal 
year).\118\ A petitioner filing an H-1B petition for a cap-subject 
beneficiary that does not file at the beginning of the filing window 
risks not being able to file at all if the window closes due to high 
demand for H-1B visas.
---------------------------------------------------------------------------

    \118\ Employers may not file, and USCIS may not accept, H-1B 
petitions submitted more than six months in advance of the date of 
actual need for the beneficiary's services or training. However, 
because demand for H-1B visas far exceeds supply in most years, 
employers generally rush to file at the first available opportunity. 
As H-1B visas are authorized by fiscal year, and thus may begin to 
authorize employment as early as the first date of the fiscal year 
(October 1), the filing window for cap-subject H-1B petitions opens 
(and generally closes) six months earlier (April 1 of the preceding 
fiscal year).
---------------------------------------------------------------------------

    In contrast, employers filing H-1B petitions on behalf of cap-
exempt beneficiaries may request an employment start date based on the 
petitioners' actual need rather than on the H-1B filing season. As 
such, cap-exempt beneficiaries do not share the same need as cap-
subject beneficiaries

[[Page 13102]]

to bridge status until the next fiscal year. For these reasons, the 
Cap-Gap provision benefits only those beneficiaries who are subject to 
the H-1B cap. DHS maintains its long-standing interpretation that 8 CFR 
214.2(f)(5)(vi) is limited to cap-subject H-1B beneficiaries, but has 
revised the regulatory text to clarify this practice.
    Comment. One commenter asked DHS to clarify the deadline for filing 
applications for STEM OPT extensions by F-1 students in a Cap-Gap 
period. According to the commenter, the relevant section in the 
proposed rule indicated that students are required to file ``prior to 
the expiration date of the student's current OPT employment 
authorization.'' The commenter asked DHS to clarify the meaning of this 
provision with respect to F-1 students with an approved Cap-Gap 
extension. Specifically, the commenter asked whether ``the expiration 
date of the student's current OPT employment authorization'' refers to 
the date on which the student's EAD expires or the end date of the 
student's approved Cap-Gap extension.
    Response. A student may file for a STEM OPT extension only if the 
student is in a valid period of post-completion OPT at the time of 
filing. A student whose post-completion OPT period has been extended 
under Cap-Gap is in a valid period of post-completion OPT, and may 
therefore apply for a STEM OPT extension during the Cap-Gap period if 
he or she meets the STEM OPT extension requirements.\119\ Please note, 
however, that if the H-1B petition upon which the student's Cap-Gap 
period is based has been approved and is not withdrawn prior to October 
1, the student's change to H-1B status will take effect on October 1, 
and the student will no longer be eligible for a STEM OPT extension.
---------------------------------------------------------------------------

    \119\ A student in Cap-Gap who meets the eligibility 
requirements for a 24-month STEM OPT extension may file his or her 
Application for Employment Authorization, with the required fee and 
supporting documents, up to 90 days prior to the expiration of the 
Cap-Gap period on October 1. 8 CFR 214.2(f)(11)(i)(C).
---------------------------------------------------------------------------

ii. Travel During Cap-Gap and While on STEM OPT Extension
    Comment. Several commenters requested that DHS allow students to 
travel abroad during the Cap-Gap period. Some of these commenters 
requested that F-1 students in OPT be allowed to travel overseas if 
they have a pending or approved request to change status to that of an 
H-1B nonimmigrant during the Cap-Gap period. One commenter asked DHS to 
harmonize policies with the Department of State regarding travel and 
reentry to the United States in Cap-Gap scenarios. The commenter opined 
that the two Departments' policies on this issue have been 
inconsistent, recommending this rulemaking as an appropriate 
opportunity to clarify when an F-1 student in a Cap-Gap period may 
travel. Another commenter suggested that the guidance in the Department 
of State Foreign Affairs Manual (9 FAM 41.61 N13.5-2 Cap Gap Extensions 
of F-1 Status and OPT) could serve as the basis for a unified policy 
among the two departments that allows travel and reentry during the 
Cap-Gap period.\120\ One commenter also asked DHS to allow a Cap-Gap 
beneficiary to return to the United States in F-1 status without having 
a valid visa.
---------------------------------------------------------------------------

    \120\ 9 FAM 402.5-5(N)(6)(f) (previously 9 FAM 41.61 N13.5-2) 
provides that if an F-1 student is the beneficiary of a timely filed 
petition for a cap-subject H-1B visa, with a start date of October 
1, the F-1 status and any OPT authorization held on the eligibility 
date is automatically extended to dates determined by USCIS allowing 
for receipt or approval of the petition, up to September 30. The 
Cap-Gap OPT extension is automatic, and USCIS will not provide the 
student with a renewed EAD. However, F-1 students in this situation 
can request an updated Form I-20 Certificate of Eligibility from the 
DSO, annotated for the Cap-Gap OPT extension, as well as proof that 
the Form I-129, Petition for a Nonimmigrant Worker, was filed in a 
timely manner. Consular officers must verify that the electronic 
SEVIS record has also been updated before issuing a visa. See 9 FAM 
402.5-5(N)(6)(f), available at https://fam.state.gov/FAM/09FAM/09FAM040205.html.
---------------------------------------------------------------------------

    Response. DHS clarifies that an F-1 student may generally travel 
abroad and seek readmission to the United States in F-1 status during a 
Cap-Gap period if: (1) The student's H-1B petition and request for 
change of status has been approved; (2) the student seeks readmission 
before his or her H-1B employment begins (normally at the beginning of 
the fiscal year, i.e., October 1); and (3) the student is otherwise 
admissible. However, as with any other instance in which an individual 
seeks admission to the United States, admissibility is determined at 
the time the individual applies for admission at a port of entry. U.S. 
Customs and Border Protection (CBP) makes such determinations after 
examining the applicant for admission. Students should refer to CBP's 
Web site (http://www.cbp.gov/travel/international-visitors/study-exchange/exchange-arrivals) for a list of the appropriate documentary 
evidence required to confirm eligibility for the relevant 
classification. Moreover, DHS believes that the guidance provided in 
this response is fully consistent with the Department of State's Cap-
Gap policy as outlined in its Foreign Affairs Manual.\121\
---------------------------------------------------------------------------

    \121\ See 9 FAM 402.5-5(N)(6)(f), available at https://fam.state.gov/FAM/09FAM/09FAM040205.html.
---------------------------------------------------------------------------

    DHS also notes that if an F-1 student travels abroad before his or 
her H-1B change-of-status petition has been approved, USCIS will deem 
the petition abandoned. Consequently, such a student no longer would be 
authorized for F-1 status during the Cap-Gap period based on the H-1B 
change-of-status petition and thus would be unable to rely on the Cap-
Gap provision's extension of duration of status for purposes of seeking 
readmission as an F-1 student. This has been the legacy INS and USCIS 
interpretation of its change-of-status authority under the INA for 
decades, applicable to all changes from one nonimmigrant status to 
another, not just those involving F-1 nonimmigrants.\122\ As such, DHS 
declines to adopt the suggestion to allow travel for Cap-Gap students 
while a change-of-status petition is pending.\123\
---------------------------------------------------------------------------

    \122\ See INA Sec. 248(a), 8 U.S.C. 1258(a) (providing that 
USCIS, in its discretion, may authorize a change from any 
nonimmigrant classification to any other nonimmigrant classification 
in the case of any alien lawfully admitted to the United States as a 
nonimmigrant who is continuing to maintain that status). See also 
INS memo HQ 70/6.2.9 (June 18, 2001 memo noting that it has long 
been Service policy deny a request for change of status where an 
alien travels outside of the United States while a request for a 
change of status is pending); Letter from Jacquelyn A. Bednarz, 
Chief, Nonimmigrant Branch, Adjudications, INS, CO 248-C (Oct. 29, 
1993), reprinted in 70 Interp. Rel. 1604, 1626 (Dec. 6, 1993).
    \123\ An individual who travels while his or her H-1B petition 
and request for change of status is pending would be required to 
apply for an H-1B visa at a consular post abroad (unless visa-
exempt) in order to be admitted to the United States in H-1B status, 
presuming the underlying H-1B petition is approved.
---------------------------------------------------------------------------

    Comment. Some commenters stated that certain documentary 
requirements in DHS regulations unnecessarily hampered a student's 
mobility. Such commenters specifically cited 8 CFR 214.2(f)(13)(ii), 
which allows an otherwise admissible F-1 student with an unexpired EAD 
issued for post-completion practical training to return to the United 
States to resume employment after a period of temporary absence. Under 
this provision, the EAD must be used in combination with an I-20 
Certificate of Eligibility endorsed for reentry by the DSO within the 
last six months. Some commenters claimed that this requirement resulted 
in DHS officers rejecting facially expired EADs at port of entries--
despite the presentation of other documents indicating valid employment

[[Page 13103]]

authorization--and denying entry to the applicants.
    Response. The Department acknowledges that it has previously cited 
8 CFR 214.2(f)(13)(ii) in connection with travel during the Cap-Gap 
period. That regulatory provision addresses the validity period of 
EADs. Following careful review, DHS has determined that 8 CFR 
214.2(f)(13)(ii), which expressly addresses the effects of departure 
from the United States by individuals with unexpired EADs, does not 
apply to Cap-Gap beneficiaries, who by definition have expired EADs. 
Therefore, 8 CFR 214.2(f)(13)(ii) does not apply to F-1 students who 
depart the United States during a Cap-Gap period.
    Comment. Several commenters requested that DHS allow students to 
travel abroad during the STEM OPT extension period or during the 
pendency of an application for such an extension. One commenter stated 
that although the F-1 visa is a multiple entry visa, the Form I-20 
Certificate of Eligibility states that a STEM OPT student's EAD is not 
valid for reentry into the United States. The commenter requested that 
DHS allow STEM OPT students to make multiple entries based on their 
status. The commenter noted that this would allow such students to 
visit their home countries at least once during the up-to-three-year 
period of practical training.
    Similarly, some commenters requested that DHS permit F-1 students 
to travel during the pendency of a request for a STEM OPT extension and 
to reenter after a period of temporary absence. Another commenter 
recommended that students with pending applications for STEM OPT 
extensions be permitted to travel outside the United States because 
many employers require their employees to engage in international 
travel as part of their jobs. The commenter noted that the proposed 
rule prohibits such students from fulfilling such job requirements.
    Response. Students on STEM OPT extensions (including those whose 
application for a STEM OPT extension is pending) may travel abroad and 
seek reentry to the United States in F-1 status during the STEM OPT 
extension period if they have a valid F-1 visa that permits multiple 
entries \124\ and a current Form I-20 Certificate of Eligibility 
endorsed for reentry by the DSO within the last six months. The 
student's status is determined by CBP upon admission to the United 
States or through a USCIS adjudication of a change-of-status petition.
---------------------------------------------------------------------------

    \124\ Department of State consular officers determine whether an 
F-1 visa is valid for multiple or single entries, which is generally 
based on reciprocity.
---------------------------------------------------------------------------

    Comment. Several commenters raised the issue of whether F-1 
nonimmigrants may have ``dual intent'' (i.e., whether such students, as 
F-1 nonimmigrants, may simultaneously seek lawful permanent residence 
or otherwise have the intent to immigrate permanently to the United 
States). Commenters that supported dual intent for F-1 students stated 
that such a policy would help attract and retain talented F-1 students 
in the United States. Certain commenters that opposed dual intent for 
students stated that this rule should be limited to maintaining F-1 
status in order to allow students to gain post-graduate practical 
experience and training in their fields of study. Other such commenters 
asserted that dual intent for students would violate Congressional 
intent and run counter to the F-1 visa classification provisions in the 
INA. See INA 101(a)(15)(F)(i).
    Response. These comments, which concern dual intent for F-1 
students generally, are beyond the scope of this rulemaking. The 
changes in this rule affect only those F-1 students applying for STEM 
OPT extensions or Cap-Gap extensions, not the entire F-1 student 
population. Moreover, none of the changes in this rule relate to 
individuals seeking lawful permanent resident status or their ability 
to hold immigrant intent while holding nonimmigrant status.
iii. Terms and Conditions of Employment Authorization Documents
    Comment. A few commenters requested that DHS include written 
restrictions on the face of the EADs provided to STEM OPT students. 
Commenters stated that all EADs, including STEM OPT EADs, appear on 
their face to be valid for unrestricted employment. Commenters were 
concerned that if a job candidate presents an EAD to complete the Form 
I-9 process, an employer will not know whether the underlying 
employment authorization is actually limited to employment with an E-
Verify employer in a field related to the student's STEM degree. 
Because of this confusion, commenters believed it was possible that an 
employer could hire a STEM OPT student whose employment authorization 
was in fact linked in SEVIS to a different employer. These commenters 
requested that DHS address this issue by adding a written restriction 
on the EAD itself.
    Response. DHS already places written restrictions on the face of 
the EADs provided to STEM OPT students (under the ``Terms and 
Conditions'' section). Such EADs currently contain the following 
notation: ``Stu: 17-Mnth Stem Ext.'' In response to the potential 
confusion described in the above comments, however, DHS has decided to 
update the notation to provide a stronger indication of the limitations 
of such EADs. Such EADs will now contain the following notation: ``STU: 
STEM OPT ONLY.'' DHS believes this new notation will better alert 
employers that the cardholder's employment authorization is subject to 
certain conditions.
    Comment. Another commenter requested that DHS issue new EADs to OPT 
students with expired EADs who either are in a Cap-Gap period or have a 
pending application for a STEM OPT extension. The commenter stated that 
these new EADs would allow such students to renew their driver's 
licenses and thus facilitate their work commute. In the alternative, 
the commenter requested that USCIS issue these students formal 
documents that would allow them to renew their driver's licenses.
    Response. Under current processes, USCIS cannot issue new EADs to 
F-1 students with pending applications without adversely affecting fee 
revenues and overall EAD processing times. Under current guidance in 
the Handbook for Employers (M-274), the combination of the student's 
expired EAD and his or her Form I-20 Certificate of Eligibility 
endorsed by the designated school official is acceptable proof of 
identity and employment authorization for purposes of Form I-9 
requirements. In response to the above comments, however, DHS has 
decided to clearly articulate this policy by updating the regulation at 
8 CFR 274a.12(b)(6)(iv) to indicate that this combination of documents 
is considered an unexpired EAD for purposes of complying with Form I-9 
requirements. DHS believes the regulatory change clearly articulates 
that students with the appropriate documents remain in F-1 status and 
are authorized for employment.
    Comment. One commenter recommended that DHS clarify whether EADs 
would be revoked if the Mentoring and Training Plan described in the 
proposed rule were to require modification or the insertion of 
additional information subsequent to the commencement of the STEM OPT 
student's employment.
    Response. As noted in section IV.B. of this preamble, if any 
material change to or deviation from the Training Plan occurs, the 
student and employer must

[[Page 13104]]

sign a modified Training Plan reflecting the material changes or 
deviations, and must ensure that the modified plan is submitted to the 
student's DSO at the earliest available opportunity. So long as the 
student and employer meet the regulatory requirements, and the modified 
Training Plan meets the requirements under this rule, the student's 
employment authorization will not cease based on a change to the plan.

I. Transition Procedures

1. Description of Final Rule and Changes From NPRM
    The 17-month STEM OPT regulations remain in force through May 9, 
2016. This rule is effective beginning on May 10, 2016. This rule 
includes procedures to allow for a smooth transition between the old 
rule and the new rule, as discussed below.
i. STEM OPT Applications for Employment Authorization Pending on May 
10, 2016
    DHS will continue to accept and adjudicate applications for 17-
month STEM OPT extensions under the 2008 IFR through May 9, 2016. The 
Department, however, has modified the transition procedures in the 
proposed rule for adjudicating those applications that remain pending 
when the final rule takes effect on May 10, 2016. In the NPRM, DHS had 
proposed that USCIS would adjudicate pending applications using the 
regulations that existed at the time the applications were submitted. 
As discussed further below, DHS has reconsidered its original proposal 
in light of comments received, and will instead apply the requirements 
of this rule to such pending cases. Beginning on May 10, 2016, USCIS 
will issue RFEs to students whose applications are still pending on 
that date. See 8 CFR 214.16(a). The RFEs will allow these students to 
effectively amend their application to demonstrate eligibility for 24-
month extensions without incurring an additional fee or having to 
refile the Application for Employment Authorization.
    Specifically, USCIS will issue RFEs requesting documentation that 
will establish that the student is eligible for a 24-month STEM OPT 
extension, including a Form I-20 Certificate of Eligibility endorsed on 
or after May 10, 2016, indicating that the DSO recommends the student 
for a 24-month STEM OPT extension. To obtain the necessary DSO 
endorsement in the Form I-20 showing that the student meets the 
requirements of this rule, the Training Plan has to be submitted to the 
DSO. Generally, under 8 CFR 214.2(f)(11)(i), a student must initiate 
the OPT application process by requesting a recommendation for OPT by 
his or her DSO. Thus, a DSO's recommendation for OPT on a Form I-20 
Certificate of Eligibility is generally not recognized as valid if such 
endorsement is issued after the Application for Employment 
Authorization is filed with USCIS. DHS, however, will consider the 
submission of the Form I-20 Certificate of Eligibility as valid if the 
form is submitted in response to the RFE that has been issued under the 
transition procedures described in 8 CFR 214.16.
    DHS recognizes that following this rule's effective date, some 
students may prefer to withdraw their pending application for a 17-
month STEM OPT extension and instead file a new application for a 24-
month STEM OPT extension. Before a student decides to do so, however, 
the student should understand the applicable filing deadlines and 
ensure that he or she does not lose F-1 status. Importantly, a student 
may file for a STEM OPT extension only if the student is in a valid 
period of post-completion OPT at the time of filing. Thus if a student 
withdraws an application for a STEM OPT extension after his or her 
period of post-completion OPT has ended, the student will no longer be 
eligible to file for a STEM OPT extension.
ii. Applications for 24-Month STEM OPT
    DHS will begin accepting applications for STEM OPT extensions under 
this rule on May 10, 2016. Beginning on that date, DHS will process all 
Applications for Employment Authorization seeking 24-month STEM OPT 
extensions in accordance with the requirements of this rule. In other 
words, the final rule's new requirements will apply to all STEM OPT 
students whose applications are pending or approved on or after the 
final rule is effective.
    Thus, a student whose Application for Employment Authorization is 
filed and approved prior to May 10, 2016 will be issued an EAD that is 
valid for 17 months (even if he or she erroneously requested a 24-month 
STEM OPT extension). As indicated above, a student whose application is 
pending on May 10, 2016 will be issued an RFE requesting documentation 
establishing that the student is eligible for a 24-month STEM OPT 
extension. As described more fully below, this documentation must 
include, among other things, a Form I-20 Certificate of Eligibility 
endorsed on or after May 10, 2016, indicating that the requirements for 
a 24-month STEM OPT extension have been met.
iii. Students With Valid, Unexpired 17-Month STEM OPT Employment 
Authorization on May 10, 2016
    Any 17-month STEM OPT EAD that is issued before May 10, 2016 will 
remain valid until the EAD expires or is terminated or revoked. See 8 
CFR 214.16(c)(1).\125\ As a transitional measure, starting on May 10, 
2016, certain students with such EADs will have a limited window in 
which to apply for an additional 7 months of OPT, effectively enabling 
them to benefit from a 24-month period of STEM OPT. See 8 CFR 
214.16(c)(2). To qualify for the 7-month extension, the student must 
satisfy the following requirements:
---------------------------------------------------------------------------

    \125\ As explained previously, 17-month STEM OPT EADs currently 
have annotations placed in the Terms and Conditions as follows: 
``Stu: 17-Mnth Stem Ext.''

     The STEM OPT student must properly file an Application 
for Employment Authorization with USCIS, along with applicable fees 
and supporting documentation, on or before August 8, 2016, and 
within 60 days of the date the DSO enters the recommendation for the 
24-month STEM OPT extension into the student's SEVIS record. See 8 
CFR 214.16(c)(2)(i). DHS believes that the 90-day window for filing 
such applications provides sufficient time for students to submit a 
required Training Plan, obtain the necessary Form I-20 Certificate 
of Eligibility and recommendation from the student's DSO, and 
fulfill other requirements for the 24-month extension.
     The student must have at least 150 calendar days \126\ 
remaining prior to the expiration of the 17-month STEM OPT EAD at 
the time the Application for Employment Authorization is filed. See 
8 CFR 214.16(c)(2)(ii). This 150-day period guarantees that a 
student who obtains an additional 7-month extension will have at 
least 1 year of practical training under the enhancements introduced 
in this rule, including site visits, reporting requirements, and 
statement and evaluation of goals and objectives. For students who 
choose to seek an additional 7-month extension, the new enhancements 
apply upon the proper filing of the Application for Employment 
Authorization requesting the 7-month extension. See 8 CFR 
214.16(c)(3).
---------------------------------------------------------------------------

    \126\ DHS recognizes that it proposed a 120-day period in the 
NPRM, but has determined for the reasons stated above that the 150-
day period is more appropriate.
---------------------------------------------------------------------------

     The student must meet all the requirements for the 24-
month STEM OPT extension as described in 8 CFR 214.2(f)(10)(ii)(C), 
including but not limited to submission of the Training Plan to the 
DSO. See 8 CFR 214.16(c)(2)(iii). STEM OPT students applying for 
this additional 7-month extension must be in a valid period of OPT, 
but are not required to be in a valid period of 12-month post-
completion OPT authorized under 8 CFR 274a.12(c)(3)(i)(B) as would

[[Page 13105]]

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normally be required for a STEM OPT extension request.

    DHS believes that these requirements are necessary to ensure that 
those who receive the additional 7-month extension are covered by this 
rule's improved compliance, reporting, and oversight measures.
    Moreover, unless and until a student with a 17-month STEM OPT 
extension properly files the application for the 7-month extension 
under the transition procedures of 8 CFR 214.16, the student, and the 
student's employer and DSO, must continue to follow all the terms and 
conditions that were in effect when the 17-month STEM OPT employment 
authorization was granted. See 8 CFR 214.16(c)(1). Upon the proper 
filing of the application for the additional 7-month STEM OPT period, 
the student, and the student's employer and DSO, will be subject to all 
but one of the requirements of the 24-month STEM OPT extension period. 
The only exception concerns the period of unemployment available to 
such a student. Under the rule, the 150-day unemployment limit 
described in 8 CFR 214.2(f)(10)(ii)(E) will apply to a student seeking 
a 7-month extension only upon approval of that extension. Thus, while 
the application for the additional 7-month extension is pending, the 
student may not accrue an aggregate of more than 120 days of 
unemployment during the entire post-completion OPT period. If the 
application for the 7-month extension is approved, the student may 
accrue up to 150 days of unemployment during the entire OPT period.
    If an application for a 7-month extension is approved, USCIS will 
issue an EAD with a validity period that starts on the day after the 
expiration date stated in the 17-month STEM OPT EAD. If an application 
for a 7-month extension is denied, the student, and the student's 
employer and DSO, must, subsequent to denial, abide by all the terms 
and conditions that were in effect when the 17-month STEM OPT EAD was 
issued, including reporting requirements. See 8 CFR 214.16(c)(3). They 
must abide by such terms throughout the remaining validity period of 
the 17-month STEM OPT extension.
    DHS recommends that students who choose to request the additional 
7-month extension obtain the necessary DSO recommendation and file 
their application as early as possible in advance of the August 8, 
2016, application deadline. USCIS's current processing times are 
available at https://egov.uscis.gov/cris/processTimesDisplayInit.do.
2. Public Comments and Responses
i. STEM OPT Applications for Employment Authorization Pending on May 
10, 2016
    Comment. DHS received comments requesting clarification on the 
procedures that would apply to F-1 students whose applications for STEM 
OPT extensions are pending at the time of the implementation of the 
final rule.
    Response. As noted above, USCIS will issue RFEs to students whose 
applications for employment authorization requesting a 17-month STEM 
OPT extension are pending on the effective date of this rule. By 
responding to the RFE, students will have the opportunity to 
demonstrate that they are eligible for a 24-month STEM OPT extension 
without incurring an additional fee, or having to refile the 
Application for Employment Authorization.
    Comment. Several commenters expressed concern about the proposed 
USCIS adjudicative process for 17-month STEM OPT applications that 
remain pending on the effective date of the final rule. For example, 
one commenter noted that the proposed rule indicated that DHS intended 
to adjudicate STEM OPT applications ``consistent with the regulations 
that existed at the time the application was submitted.'' The commenter 
was concerned with the potential confusion that would arise if a DSO 
issued a 17-month STEM OPT recommendation before the new rule's 
effective date but the student filed the Application for Employment 
Authorization after that date. In such a case, the commenter added, the 
student's Application for Employment Authorization would not meet the 
applicable requirements at the time of filing. The commenter 
recommended that DHS instead use the date of the DSO recommendation as 
the determinative factor as to which regulatory requirements to apply.
    Response. DHS appreciates commenters' concerns about the 
possibility for confusion. To clarify, 17-month STEM OPT applications 
that are filed prior to, and remain pending on, May 10, 2016 will be 
processed in accordance with the requirements of this rule. As 
described above, USCIS will issue RFEs to students with such pending 
applications. The RFE will request documentation showing that the 
student meets the requirements of the 24-month STEM OPT extension. The 
documentation must include a Form I-20 Certificate of Eligibility 
endorsed on or after May 10, 2016, indicating that the DSO recommends 
the student for a 24-month STEM OPT extension. Submission of the Form 
I-20 in response to the RFE will be regarded as fulfillment of the 
requirement, contained in 214.2(f)(11)(i) of this section, that a 
student must initiate the OPT application process by requesting a 
recommendation for OPT by his or her DSO. See 8 CFR 214.16(a)(1).
    Moreover, DHS will deem 17-month STEM OPT applications that remain 
pending on May 10, 2016, to be covered by 8 CFR 214.2(f)(11)(i)(C) and 
8 CFR 274a.12(b)(6)(iv) of this rule. These provisions state that if a 
student's post-completion OPT expires while his or her timely filed 
STEM OPT application is pending, the student will receive an automatic 
extension of employment authorization of up to 180 days upon the 
expiration of his or her current employment authorization.\127\ See 8 
CFR 214.16(a)(2).
---------------------------------------------------------------------------

    \127\ In addition, DHS considers students who apply for and are 
granted an additional 7-month period of STEM OPT eligible for the 
Cap-Gap provision described in section IV.H. of this preamble.
---------------------------------------------------------------------------

ii. New Applications for STEM OPT Under This Rule
    Comment. Some commenters sought clarification on whether a student 
in the 60-day grace period following an initial 12-month period of 
post-completion OPT would be given the opportunity to apply for a STEM 
OPT extension if the new rule takes effect during the student's 60-day 
grace period. Some commenters asked whether there will be an additional 
grace period allowing students to come into compliance with the final 
rule once it is published.
    Response. This rule, like the 2008 IFR, does not allow students to 
apply for STEM OPT extensions during the 60-day grace period following 
an initial 12-month period of post-completion OPT. The current 
requirement to properly file the request for a STEM OPT extension prior 
to the end of the initial OPT period allows sufficient time for the F-1 
student to apply for the extension and is administratively convenient 
as it ensures continuing employment authorization during the transition 
from the initial OPT period to the STEM OPT period. Accordingly, if a 
student anticipates that he or she will enter the 60-day grace period 
before May 10, 2016, the student should not wait to apply. Such a 
student should apply for the 17-month STEM OPT extension before his or 
her initial OPT period expires.

[[Page 13106]]

iii. Students with Valid, Unexpired 17-Month STEM OPT Employment 
Authorization on May 10, 2016.
    Comment. Some commenters stated that a failure to promulgate a new 
rule prior to the vacatur of the 2008 IFR would result in negative 
impacts to students currently on 17-month STEM OPT extensions, as well 
as U.S. employers and the U.S. economy. Commenters stated that a 
regulatory gap would result in negative financial impacts for a great 
number of employers as well as several thousand students who will be at 
a risk of losing their status.
    Response. DHS has endeavored to have a final rule in place before 
the vacatur takes effect. DHS understands the commenters' concerns, but 
believes that such concerns are now moot.
    Comment. Some commenters also asked whether, following the final 
rule's effective date, students currently on 17-month STEM OPT 
extensions would be allowed to apply for a 24-month STEM OPT extension. 
One commenter requested that existing 17-month extensions automatically 
be extended to a 24-month period to reduce workload for both students 
and USCIS. Other commenters stated that students who received 17-month 
STEM OPT EADs should receive a waiver of application fees for a revised 
24-month EAD. According to these commenters, students had not caused 
the program requirements to change, and they should not be punished for 
it.
    Response. As noted above, after the effective date of this final 
rule, certain students with 17-month STEM OPT extensions may apply for 
an additional 7-month extension to effectively obtain the balance of 
the new 24-month STEM OPT extension. To qualify for the 7-month 
extension, such students must have at least 150 days remaining before 
the end of the student's 17-month OPT period, and they must otherwise 
meet all requirements of the final rule governing the 24-month STEM OPT 
extension. DHS considered commenters' suggestions, but ultimately 
determined that automatically converting 17-month extensions into 24-
month extensions would be inconsistent with many parts of the rule, 
including the requirements related to Training Plans, employer 
attestations, and reporting requirements. For these reasons, students 
with 17-month extensions who seek to benefit from the 24-month 
extension must apply for the balance of the 24-month extension 
consistent with this rule's requirements.
    Comment. DHS received a number of comments seeking clarification on 
the categories of students who would be affected by the new 
requirements for obtaining STEM OPT extensions. Several commenters 
asked DHS to clarify whether the new requirements would apply to 
students on 17-month STEM OPT extensions on the date the final rule 
becomes effective. One commenter asked whether students currently on 
17-month STEM OPT extensions would be permitted to complete their 
period of authorized STEM OPT.
    Response. As noted above, the new requirements apply only to STEM 
OPT applications that are pending on the effective date of the final 
rule or that are submitted after that date. The new requirements do not 
affect current 17-month STEM OPT beneficiaries, except to the extent 
that such beneficiaries seek to avail themselves of the additional 7-
month OPT period available to them under the transition provisions of 
the final rule. Students currently on 17-month STEM OPT extensions who 
do not seek 7-month extensions will be permitted to complete their 
authorized 17-month STEM OPT period, barring termination or revocation 
of their EAD under 8 CFR 274a.14. During this time, the student, and 
the student's employer and DSO, must continue to abide by all the terms 
and conditions that were in effect when that EAD was issued.

J. Comments on the Initial Regulatory Impact Analysis

    Comment. Some commenters were generally supportive of the proposed 
rule, but stated that DHS severely underestimated the time-burden and 
costs to DSOs for complying with requirements concerning the submission 
of training plans and periodic evaluations. Commenters believed that 
DHS estimates related to these requirements--including 30 minutes for 
review of training plans and 15 minutes for review of periodic 
evaluations--were unrealistic. Specifically, one university 
representative explained that DSOs would need to spend 50 to 60 minutes 
reviewing and storing each training plan. The commenter explained that 
DSOs would need 30 minutes to review training plans for completeness 
and follow up with students as necessary, and an additional 20 to 30 
minutes to upload the document into SEVIS. Other commenters stated that 
it would take an employer 90 to 120 minutes to complete the proposed 
Mentoring and Training Plan.
    Response. In response to comments, DHS revised the time estimated 
to initially complete the Training Plan form. DHS added an hour to the 
estimate of DSO's time to initially complete the Training Plan form, 
and 50 minutes to the estimate of DSO's time for the coordination and 
completion of each evaluation. DHS added two hours to the estimate of 
employer's time to initially complete the Training Plan form, and 30 
minutes to the estimate of employer's time for the coordination and 
completion of each evaluation. DHS added 30 minutes to the estimate of 
student's time for the coordination to initially complete the Training 
Plan form, and 30 minutes for the coordination and completion of each 
evaluation.
    As noted above, this final rule includes a number of provisions 
intended to minimize burden on employers while ensuring that the 
Training Plan for STEM OPT Students serves its stated purposes. For 
instance, DHS has revised the regulatory text and the Training Plan 
form to clarify that employers may rely on existing training programs 
for STEM OPT students, so long as those programs satisfy this rule's 
requirements. Also in response to comments, DHS has clarified the form 
instructions and various fields on the form. Among other things, DHS 
has removed the reference to ``mentoring,'' which many commenters 
stated would comprise a significant part of the expected time to both 
complete and review the proposed form.
    With regard to the commenter's estimate of the approximate time 
required to upload the training plan into SEVIS, DHS clarifies that the 
rule does not require the Training Plan for STEM OPT Students to be 
uploaded into that database at this time, but instead only requires 
that DSOs properly store it. Once SEVIS functionality is upgraded to 
permit the Training Plan to be uploaded, the form must be uploaded into 
SEVIS for each F-1 student participating in a STEM OPT extension. DHS 
anticipates, however, that the new student portal will allow F-1 
students to upload certain information, including the Training Plan, 
directly into SEVIS. This means that DSOs ultimately will not be 
required to spend any time uploading the form into SEVIS and that their 
burdens will otherwise be reduced due to the student portal.
    Comment. Another commenter suggested that DHS ``is neglecting its 
duty under federal guidance to discuss crucial economic considerations, 
such as how many OPT workers will be hired instead of American workers; 
how many STEM grads have given up finding work in the STEM field; how 
the new rule will affect tech-worker wages and American STEM-grad 
employment.''
    Response. DHS disagrees that it neglected to consider the economic

[[Page 13107]]

impact of the proposed rule, much of which was described in the Initial 
Regulatory Impact Analysis. DHS carefully considered the potential 
direct costs and benefits of the proposed rule, and has carefully 
considered the potential direct costs and benefits of the final rule.
    Comment. Some commenters suggested that DHS shift costs away from 
students and universities. For instance, some commenters supported the 
rule, but suggested fees to employers or students that would cover 
government costs or costs for universities, including the training of 
DSOs on how to administer and review the proposed Mentoring and 
Training Plan.
    One DSO recommended that DHS establish a minimum personnel full-
time equivalent (FTE) requirement for ``SEVP regulatory advising and 
SEVIS reporting requirement[s],'' which would be based on the number of 
F-1 students enrolled and whether the school uses SEVIS Real-time 
Interactive web processing or batch processing. The same DSO also 
suggested that this FTE figure be a SEVIS reporting requirement as part 
of a school's recertification. Some commenters said that DHS' 
estimation of the time required for reviewing the proposed Mentoring 
and Training Plan was too low in light of DSOs' current work duties.
    Response. DHS views the Training Plan as primarily the student's 
responsibility to create and submit, but has made a number of changes 
in this rule that will reduce the implementation costs for schools. For 
example, DHS has decided to require only an annual evaluation, and the 
Department has also clarified a DSO's review responsibilities in 
section IV.F. of this preamble. In addition, SEVIS will soon be updated 
to include a portal allowing students to update their own information. 
DHS believes the rule offers benefits to U.S. institutions of higher 
education that outweigh administrative implementation costs.
    With respect to the commenters' specific proposals, DHS notes that 
there are currently no plans to add a surcharge to employers to defray 
additional costs to schools or students. DHS does not expect that this 
rule would require new hiring by the school; nevertheless, in 2015 DHS 
lifted the prior cap of 10 DSOs per campus, allowing schools to better 
allocate personnel to suit their F-1 student population needs. See 8 
CFR 214.3(l)(1)(iii); Final Rule: Adjustments to Limitations on 
Designated School Official Assignment and Study by F-2 and M-2 
Nonimmigrants, 80 FR 23680 (Apr. 29, 2015). DHS will continue to seek 
feedback and proposals from school officials on ways to increase 
clarity and minimize burden.
    Comment. Some DSOs stated that their workloads would increase if 
they were obligated to follow up with students who miss their Training 
Plan deadlines and reporting requirements.
    Response. If a student does not submit his or her evaluation on 
time, the DSO should report that fact to DHS. After such reporting is 
completed, the DSO would have no further responsibility related to 
student non-compliance aside from any potential case-by-case DHS 
request for documentation regarding the student.
    Comment. One commenter sought clarification on which persons would 
be responsible for advising U.S. employers of their reporting 
obligations under 8 CFR 214.2(f)(10)(ii)(C)(6). The commenter, a 
school, stated that this would be another burden that would fall on 
schools as they would end up educating employers about their 
obligations.
    Response. The employer, as an active participant in the STEM OPT 
extension program, is responsible for reporting any changes in student 
employment and monitoring students' progress and work via the Training 
Plan. DHS will make initial guidance available to all parties--DSOs, 
employers, and students--regarding the responsibilities of each, as 
soon as feasible. These guides will be posted at http://www.ice.gov and 
http://studyinthestates.dhs.gov.
    Comment. The Initial Regulatory Impact Analysis estimated that it 
would take approximately three hours for the employer to complete the 
proposed Mentoring and Training Plan, including 2 hours for employers 
to initially complete the plan and an additional hour for employers to 
help complete the required evaluations.\128\ Some commenters stated 
that DHS' initial estimate of the time burden for employers to complete 
the proposed Mentoring and Training Plan and conduct the required 
evaluation every six months was too low. One commenter cited a survey 
of employers in which four out of five employers responded that ``the 
government's estimate regarding time and cost to comply with the 
program requirements is too low.'' Another commenter observed that DHS' 
initial time estimate did not account for time necessary for 
communication between the student, the DSO, and the employer in order 
to complete Section 1 of the form.
---------------------------------------------------------------------------

    \128\ See DHS, Initial Regulatory Impact Analysis, table 7 (Oct. 
2015), available at http://www.regulations.gov/#!documentDetail;D=/
ICEB-2015=/-0002=/-0206.
---------------------------------------------------------------------------

    Response. DHS recognizes the concerns of students and employers 
with regard to complying with the Training Plan requirements. As noted 
above, DHS has incorporated significant flexibilities and 
clarifications into the Training Plan requirement, including by 
reducing the frequency of evaluations. DHS has also revised the burden 
estimates upwards, including to account for time for necessary 
communication between the student, DSO, and employer.
    Comment. Some commenters stated that any government costs incurred 
to implement the rule should be used instead to help train and prepare 
U.S. students and graduates.
    Response. The STEM OPT extension is a program implemented by SEVP, 
which is entirely funded by fees paid by students and schools. The 
program does not receive appropriated funds from Congress, and the 
program is not implemented at taxpayers' expense. Thus, any elimination 
of the STEM OPT extension would not result in increased budget 
flexibility to address training of U.S. citizen students and workers.

K. Other Comments

1. Introduction
    DHS received a number of comments related to matters falling 
outside the topics discussed above. The comments are addressed below.
2. Public Comments and Responses
i. Procedural Aspects of the Rulemaking
    Comment. Several commenters asserted that foreign nationals 
(including students and non-U.S. workers) should not be allowed to 
comment on the proposed rule.
    Response. Such an approach would be inconsistent with the statutory 
requirements established by Congress in the APA's notice-and-comment 
provision, which do not include a citizenship or nationality 
requirement and places a priority on allowing all interested persons to 
participate in a rulemaking proceeding.
    Comment. One commenter stated that the use of a 30-day comment 
period instead of a 60-day comment period suggested an ``executive 
power grab.'' The commenter added that the 30-day comment period was 
intentionally designed to allow the rule to go into effect on February 
13, 2016, when the 2008 STEM OPT extension was originally scheduled to 
be vacated. The commenter stated that a February 13 effective date 
would allow DHS to avoid a hiatus in processing applications.

[[Page 13108]]

Another commenter stated that the 30-day comment period has the 
potential to expose the Department and this rule to unneeded scrutiny 
and possible delay. The commenter suggested that DHS consider 
withdrawing the current proposal and re-release a new proposed rule 
with a timeline that is consistent with Executive Order 13563.
    Response. DHS recognizes that Executive Order 13563 recommends a 
60-day comment period. However, the Administrative Procedure Act makes 
no reference to that time period. See 5 U.S.C. 553. For many years 
courts have recognized that 30 days provides a meaningful opportunity 
for public input into rulemaking. See, e.g., Conference of State Bank 
Sup'rs v. Office of Thrift Supervision, 792 F. Supp. 837, 844 (D.D.C. 
1992). DHS notes that the fact that it received over 50,500 comments on 
the proposed rule suggests that the 30-day period provided an adequate 
opportunity for public input. Especially in light of the need for swift 
action to address impending vacatur of the 2008 IFR, DHS believes that 
the 30-day comment period was reasonable.
    Comment. One commenter expressed doubts that DHS would consider 
comments regarding this regulation rather than ``just dismiss[ing]'' 
them because, according to the commenter, ``the Department seemingly 
didn't think the `over 900' comments it got in response to the 2008 IFR 
were worth any response at all.'' The commenter suggested that the 
final rule should explain why the first STEM OPT regulation was never 
finalized and why it was not a ``violation of the spirit or the letter 
of the APA to not finalize the 2008 IFR.''
    Response. DHS disagrees with the commenter. DHS has considered all 
comments submitted in regard to this rulemaking, as reflected in the 
extensive discussion in this preamble. In any case, notwithstanding 
that DHS was under no legal obligation to do so, DHS relied on the 
comments to the 2008 IFR when developing the 2015 NPRM. See, e.g., 80 
FR 66380-82, 63384, 63386-91 (Oct. 19, 2015).
ii. Impact of STEM OPT on the H-1B Program
    Comment. A number of commenters expressed concern about the impact 
that this rulemaking will have on the H-1B visa program. One commenter 
stated that the proposed rule would make it harder for individuals to 
obtain H-1B visas. The commenter explained that the extended OPT period 
effectively will give F-1 students multiple opportunities to apply for 
H-1B visas, and that without a commensurate increase in the number of 
H-1B visas, the rule would increase competition and make it harder to 
obtain such visas. Some commenters stated that only students who are 
not granted H-1B visas should be granted STEM OPT extensions, 
apparently believing the two programs are best considered as 
alternatives.
    Another commenter stated that ``DHS predicts the number of 
[individuals] working on student visas will be greater than the H-1B 
quotas.'' Another commenter expressed that STEM OPT graduates are 
advantaged over H-1B workers, because they have the liberty of changing 
employers more frequently and with more ease than H-1B workers. 
However, another commenter stated that students participating in the 
STEM OPT extension lack mobility and described them as ``indentured 
laborers'' that do not have rights ``like being able . . . to change 
jobs.''
    Response. DHS acknowledges that some employers may choose to 
sponsor F-1 students on STEM OPT extensions for H-1B visas. However, 
DHS expects that employers will invest in retaining only those STEM OPT 
students who have demonstrated through their performance during OPT 
that they are likely to make valuable contributions in a position 
related to their STEM field of study. Employers would make such 
decisions using the same business judgments they currently rely on to 
competitively recruit and retain talent and, in some cases, sponsor 
foreign nationals for H-1B visas.
    DHS does not believe sufficient data has been presented to make a 
determination one way or the other regarding the suggestion that the 
rule will make it harder for individuals to obtain H-1B visas but 
believes that any impact will be minimal. DHS notes that there is no 
limit on the total number of H-1B petitions that an employer may submit 
in any given year, and no requirement that the individual be in the 
United States when a petition is submitted on his or her behalf. As 
compared to the total number of people in the world who may be eligible 
for H-1B visas, the total number of STEM OPT extension participants in 
any given year will be quite small. And to the extent that an increase 
in interest in the H-1B program from STEM OPT students may result in 
increased competition for scarce H-1B visas, the appropriate remedy for 
increasing the statutory limits imposed by Congress on H-1B visas would 
require legislative action.
    Additionally, as noted above, the fundamental purpose of the STEM 
OPT extension is not to provide students with another chance at the H-
1B lottery while in the United States. Instead, as explained in detail 
in the above discussions regarding experiential learning and important 
U.S. national interests, DHS believes the STEM OPT extension will 
promote what DHS believes to be the worthy goals of expanding the 
educational and training opportunities of certain international 
students, improving the competitiveness of U.S. academic institutions, 
and ensuring the continued substantial economic, scientific, 
technological, and cultural benefits that F-1 students bring to the 
United States generally.
    DHS considered comments expressing concerns that STEM OPT students 
would add to the number of workers competing for jobs in the U.S. labor 
market beyond those Congress authorized in other employment-based 
nonimmigrant visa programs, and that they would potentially displace 
more-experienced U.S. workers. DHS considered potential impacts of 
student training in the employment context and has included specific 
labor market safeguards in this final rule. Specifically, any employer 
providing a training opportunity to a STEM OPT student must attest that 
the student will not replace a full- or part-time, temporary or 
permanent U.S. worker. The rule also includes protections to deter use 
of the STEM OPT extension to undercut U.S. workers' compensation, or 
sidestep other terms and conditions of employment that the employer 
would typically provide to U.S. workers. Specifically, the rule 
requires that the terms and conditions of a STEM practical training 
opportunity (including duties, hours, and compensation) be commensurate 
with those applicable to similarly situated U.S. workers. As stated 
previously, OPT is a part of the educational experience that 
individuals come to the United States to obtain, and the presence of 
these individuals in U.S. colleges and universities, as well as in 
workplaces, exposes U.S. students and workers to their intellectual and 
cultural perspectives, which ultimately provides significant cultural 
and economic benefits.
    In response to the comment asserting that STEM OPT students can 
change jobs more easily and frequently than H-1B nonimmigrants, DHS 
first notes that commenters expressed varying views on whether the STEM 
OPT extension would result in such an impact. Additionally, unlike the 
H-1B program's objective to temporarily satisfy a sponsoring employer's 
need for labor, the STEM OPT extension's objective is to ensure 
adequate training appropriate to the major area of study

[[Page 13109]]

for the student. DHS determined that in order to meet that objective, 
the employer must comply with the requirements of this final rule, 
which include providing training conditions consistent with the 
established Training Plan. Therefore, F-1 students may change employers 
during a STEM OPT extension, but only in accordance with the STEM OPT 
regulations and in order to further their practical education in a 
position directly related to their major area of study. Outside of such 
a situation, STEM OPT students who leave their employers risk a loss of 
immigration status and the opportunity to further develop their skills 
through practical training.
iii. Miscellaneous Other Comments
    Comment. A university applauded the clarification in a footnote 
that ``OPT can be full-time even while a student is attending school 
that is in session,'' but requested that the statement be affirmed via 
regulatory text.
    Response. DHS declines to make this change because it would impact 
not only STEM OPT extensions but also the general OPT program, which 
would be outside the scope of this rulemaking.
    Comment. A commenter asked whether a student can choose to end his 
or her post-completion OPT before the end of the eligibility period, so 
that the student may preserve some OPT eligibility time for another 
degree the student plans to pursue at the same educational level.
    Response. The time that a student may spend on OPT is not 
``bankable'' between two different degrees. This concept remains 
applicable to the STEM OPT extension as well as to all pre- or post-
completion OPT. If a student does not use the full period of time 
eligible for one degree, the extra time cannot be used for OPT based on 
a different degree.
    Comment. DHS received several comments regarding potential 
environmental costs resulting from an increased population, both in the 
United States generally, and in Silicon Valley, California 
specifically, where many STEM jobs are located. Some also noted that 
California has been struggling with an ongoing drought.
    Response. Upon review, DHS remains convinced that our review 
pursuant to the National Environmental Policy Act is in compliance with 
the law and with our Directive and Instruction.

V. Statutory and Regulatory Requirements

    DHS developed this final rule after considering numerous statutes 
and executive orders related to rulemaking. The below sections 
summarize our analyses based on a number of these statutes and 
executive orders.

A. Executive Orders 12866 and 13563: Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, as well as distributive impacts and 
equity). Executive Order 13563 emphasizes the importance of quantifying 
both costs and benefits, of reducing costs, of harmonizing rules, and 
of promoting flexibility. DHS has prepared an analysis of the potential 
costs and benefits associated with this final rule. The analysis can be 
found in the docket for this rulemaking and is briefly summarized here. 
This rule has been designated a ``significant regulatory action'' that 
is economically significant, under section 3(f)(1) of Executive Order 
12866. Accordingly, OMB has reviewed this regulation.
1. Summary
    DHS is amending nonimmigrant student visa regulations on OPT for 
students with degrees in STEM from U.S. accredited institutions of 
higher education. The final rule includes a 24-month STEM OPT 
extension. The rule also seeks to strengthen the STEM OPT program by 
requiring formal training plans by employers, adding wage and other 
protections for STEM OPT students and U.S. workers, allowing extensions 
only to students with degrees from accredited schools, and requiring 
employers to enroll and remain in good standing with E-Verify. The rule 
also provides Cap-Gap relief for any F-1 student with a timely filed H-
1B petition and request for change of status.
    The rule provides a formal mechanism for updating the STEM 
Designated Degree Program list, and permits a student participating in 
post-completion OPT to use a prior eligible STEM degree from a U.S. 
institution of higher education as a basis to apply for an extension, 
provided the most recent degree was also received from a currently 
accredited institution. The rule implements compliance and reporting 
requirements that focus on formal training programs to augment academic 
learning through practical experience, in order to equip students with 
a more comprehensive understanding of their selected area of study and 
broader functionality within their chosen field. These changes also 
help ensure that the nation's colleges and universities remain globally 
competitive in attracting international STEM students to study and 
lawfully remain in the United States.
2. Summary of Affected Population
    DHS has identified five categories of students who will be eligible 
for STEM OPT extensions under the final rule: (1) Those currently 
eligible based on a recently obtained STEM degree; (2) those eligible 
based upon a STEM degree earned prior to their most recent degree; (3) 
those eligible for a second STEM OPT extension; (4) those eligible 
based on potential changes to the current STEM list; and (5) those 
eligible to increase a currently authorized STEM OPT extension period 
from 17 to 24 months.
    DHS estimates the total number of affected students across the five 
categories to be almost 50,000 in year one and grow to approximately 
92,000 in year 10. This estimation is based on the growth rate of the 
overall proportion of students with an eligible STEM degree who 
participate in the post-completion OPT program. DHS utilized a 15 
percent growth rate that levelled off to 11 percent to achieve a long 
run stabilized participation rate in six years. Based on slightly lower 
and higher growth rates, DHS calculated low and high estimates; for 
year 1 the low and high figures are about the same as the primary 
estimate, but by year 10 the low estimate is about 80,000 and the high 
estimate is approximately 112,000.
    DHS conducted a statistically valid sample analysis to estimate the 
number of STEM OPT employers and schools that would be considered small 
entities. To identify the entities that would be considered ``small,'' 
DHS used the Small Business Administration's (SBA) guidelines on small 
business size standards applied by NAICS code. This analysis indicated 
that 48 percent of schools are small entities. Based on 1,109 approved 
and accredited schools participating in STEM OPT extensions, about 532 
could reasonably be expected to be small entities impacted by this 
rule. A sample of 26,260 entities that employed STEM OPT students under 
the 2008 IFR revealed that about 69 percent were small. Hence, this 
rule could affect about 18,000 employers that are small entities.
3. Estimated Costs of Final Rule
    DHS estimates that the direct costs imposed by the implementation 
of this rule will be approximately $886.1 million over a 10-year 
analysis time period. At a 7 percent discount rate, the rule will cost 
$588.5 million over the

[[Page 13110]]

same period, which amounts to $83.8 million per year when annualized at 
a 7 percent discount rate. At a 3 percent discount rate, the rule will 
cost $737.6 million over the same period, which amounts to $86.5 
million per year when annualized at a 3 percent discount rate. These 
costs include the direct and monetized opportunity costs to the three 
types of entities primarily affected by this rule: students, schools, 
and employers. Students will incur costs completing application forms 
and paying application fees; reporting to DSOs; preparing, with their 
employers, the Training Plan; and periodically submitting updates to 
employers and DSOs. DSOs will incur costs reviewing information and 
forms submitted by students, inputting required information into the 
SEVIS, and complying with other oversight requirements related to 
prospective and participating STEM OPT students. Employers will incur 
costs preparing the Training Plan with students, confirming students' 
evaluations, undergoing site visits, researching the compensation of 
similarly situated U.S. workers, enrolling in (if not previously 
enrolled) and using E-Verify to verify employment eligibility for all 
new hires, and complying with additional requirements related to E-
Verify. The following table shows a summary of the total costs for a 
10-year period of analysis.

                        Table 2--Summary of the Total Costs of the Final Rule, 2016-2025
                                                  [$ millions]
----------------------------------------------------------------------------------------------------------------
                                                                     STEM OPT
                              Year                                extension cost   E-Verify cost    Total cost
                                                                               a               b       c = a + b
----------------------------------------------------------------------------------------------------------------
1...............................................................           $65.5            $1.8           $67.3
2...............................................................            50.1             2.1            52.2
3...............................................................            57.7             2.5            60.2
4...............................................................            66.3             3.0            69.3
5...............................................................            76.2             3.5            79.7
6...............................................................            84.6             4.2            88.8
7...............................................................            93.9             5.0            98.9
8...............................................................           104.2             6.0           110.2
9...............................................................           115.7             7.1           122.8
10..............................................................           128.4             8.4           136.8
                                                                 -----------------------------------------------
    Total.......................................................           842.5            43.6           886.1
Total (7%)......................................................           560.6            27.9           588.5
Total (3%)......................................................           701.9            35.7           737.6
Annual (7%).....................................................            79.8             4.0            83.8
Annual (3%).....................................................            82.3             4.2            86.5
----------------------------------------------------------------------------------------------------------------
* Estimates may not sum to total due to rounding.

    DHS estimates the following distribution of costs per STEM OPT 
extension under the final rule at: $767 per student, $239 per 
university DSO, $1,268 per employer (with E-Verify), and $1,549 per 
employers new to STEM OPT (new to E-Verify).
    In addition to the quantified costs summarized above, there could 
be unquantified direct costs associated with this rule. Such costs 
could include costs to students and schools resulting from the final 
accreditation requirement; costs to employers from the final 
requirement to provide STEM OPT students with compensation commensurate 
to similarly situated U.S. workers; and decreased practical training 
opportunities for students no longer eligible for the program due to 
revisions to the STEM OPT program. DHS does not have adequate data to 
estimate the monetary value of these possible costs.
4. Estimated Benefits of Final Rule
    Making the STEM OPT extension available to additional students and 
extending its length will enhance students' ability to achieve the 
objectives of their courses of study by allowing them to gain valuable 
knowledge and skills through on-the-job training that may be 
unavailable in their home countries. The changes will also benefit the 
U.S. educational system, U.S. employers, and the U.S. economy. The rule 
will benefit the U.S. educational system by helping ensure that the 
nation's colleges and universities remain globally competitive in 
attracting international students in STEM fields. U.S. employers will 
benefit from the increased ability to rely on the skills acquired by 
STEM OPT students while studying in the United States, as well as their 
knowledge of markets in their home countries. The U.S. economy as a 
whole will benefit from the increased retention of STEM students in the 
United States, including through increased research, innovation, and 
other forms of productivity that enhance the nation's scientific and 
technological competitiveness.
    Furthermore, strengthening the STEM OPT extension by implementing 
requirements for training, tracking objectives, reporting on program 
compliance, and requiring the accreditation of participating schools 
will further prevent abuse of the limited on-the-job training 
opportunities provided by this program. These and other elements of the 
rule will also improve program oversight, strengthen the requirements 
for program participation, and better protect against adverse 
consequences on U.S. workers, as well as consequences that may result 
from exploitation of students.
    DHS has not attempted to quantify the potential benefits of the 
rule because such benefits are difficult to measure. These benefits 
encompass a number of dynamic characteristics and explanatory variables 
that are very difficult to measure and estimate. Quantifying these 
variables would require specific analyses to develop reasonable and 
accurate estimates from survey methods that are not within the scope of 
this regulatory analysis.
5. Alternatives
    For purposes of this analysis, DHS considered three principal 
alternatives to the final rule. The first alternative was to take no 
regulatory action, in

[[Page 13111]]

which case STEM OPT students would no longer be allowed to work or 
reside in the United States past their 12-month post-completion OPT 
period, unless they were able to convert to another employment-
authorized visa classification or complete another academic program. 
DHS believes the benefits that accrue from allowing the F-1 STEM OPT 
extension for students and educational institutions would not be 
realized under this alternative and that in many cases these students 
would have to leave the United States. DHS rejects this alternative 
because it would deter future international students from applying to 
STEM degree programs at U.S. educational institutions and reduce the 
attractiveness of U.S. educational institutions compared to educational 
systems in other countries that have more flexible postgraduate 
training programs.
    The second alternative considered was to keep the maximum length of 
the STEM OPT extension at 17 months, while implementing all other 
aspects of the final rule. For students seeking a STEM OPT extension 
based on a second or previously earned STEM degree, the alternative 
would be similar to the final rule, except with respect to the duration 
of the OPT period. The 10-year total of this alternative is $29 million 
less than the final rule, discounted at 7 percent. After evaluation of 
DHS's experience with the STEM OPT extension, DHS has rejected this 
alternative so as to ensure that the practical training opportunity is 
long enough to complement the student's academic experience and allow 
for a meaningful educational experience, particularly given the complex 
nature of many STEM projects.
    The third alternative to the final rule was to include a six-month 
evaluation as part of the Training Plan. This alternative was 
considered in the NRPM. After considering an employer's typical 
schedule of annual evaluations for all employees, including STEM OPT 
extension students, DHS has rejected this alternative in favor of an 
annual evaluation.
    The results of this comparison of alternatives are summarized in 
the following table.

                           Table 3--Total Costs for Regulatory Alternatives Considered
                                                  [$ millions]
----------------------------------------------------------------------------------------------------------------
                                                                   Alternative 2                   Improving and
                                                   Alternative 1   no change in    Alternative 3  extending STEM
                      Year                           no action       STEM OPT         6 month       OPT (final
                                                                      length        evaluations        rule)
----------------------------------------------------------------------------------------------------------------
1...............................................            $0.0           $44.8           $81.0           $67.3
2...............................................             0.0            51.6            64.2            52.2
3...............................................             0.0            59.3            73.8            60.2
4...............................................             0.0            68.2            85.0            69.3
5...............................................             0.0            78.5            97.8            79.7
6...............................................             0.0            87.4           108.9            88.8
7...............................................             0.0            97.3           121.2            98.9
8...............................................             0.0           108.4           134.9           110.2
9...............................................             0.0           120.8           150.2           122.8
10..............................................             0.0           134.6           167.3           136.8
                                                 ---------------------------------------------------------------
    Total.......................................             0.0           851.1         1,084.4           886.1
Total (7%)......................................             0.0           559.5           720.0           588.5
Total (3%)......................................             0.0           705.5           902.5           737.6
----------------------------------------------------------------------------------------------------------------
* Estimates may not sum to total due to rounding.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small entities during 
rulemaking. The term ``small entities'' comprises small business, not-
for-profit organizations that are independently owned and operated and 
are not dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000.
1. A Statement of the Need for, and Objectives of, the Rule
    The final rule improves the STEM OPT extension by increasing 
oversight and strengthening requirements for participation. The changes 
to the STEM OPT extension regulations are intended to enhance the 
educational benefit of the STEM OPT extension, create a formal process 
for updating the list of STEM degree programs that are eligible for the 
STEM OPT extension, and incorporate new measures to better ensure that 
STEM OPT extensions do not adversely affect U.S. workers. DHS 
objectives and legal authority for this final rule are further 
discussed elsewhere in this preamble.
2. A Statement of the Significant Issues Raised by the Public Comments 
in Response to the Initial Regulatory Flexibility Analysis, a Statement 
of the Assessment of the Agency of Such Issues, and a Statement of Any 
Changes Made in the Rule as a Result of Such Comments
    Comment. Many universities and employers specifically stated that 
the rule would improve overall U.S. economic competitiveness. However, 
commenters stated that the burden of the proposed Mentoring and 
Training Plan would be felt more acutely by small- to medium-sized 
businesses that use this program. Commenters stated that managers of 
such businesses have many daily responsibilities--they are responsible 
for payroll, managing the Human Resources department, and personally 
working with their customers or clients, among other responsibilities. 
Commenters stated that DHS underestimated the increased administrative 
burdens that will be borne by small businesses, and noted that this 
time cannot be spent on the core competencies of the firm. Many of 
these same concerns are shared by larger companies as well. Commenters 
identifying as large participants in the OPT program stated concerns 
that the individualized training plan must be tracked by a supervisory 
employee at the firm for each worker.
    Commenters stated that many firms already have workable mentoring 
and training programs in place at their firms, and some expressed 
concerns that the

[[Page 13112]]

training plan requirement, in many cases, would force companies to make 
major changes to their current mentoring programs while imposing an 
unreasonable cost burden. Other commenters expressed concern that DHS 
severely underestimated the time to fill out the form. Finally, in the 
initial regulatory flexibility analysis, DHS presented the costs to 
schools as a percentage of annual revenue. A university commenter 
stated that comparing costs against revenue is not appropriate because 
schools do not generate revenue from their graduates directly, and 
universities do not fund their international student offices based on 
student population.
    Response. DHS recognizes the concerns of employers with regard to 
complying with the training plan requirements. As noted in sections 
IV.B. and IV.F. of this preamble, DHS has revised the NPRM to allow for 
additional flexibilities for employers. For instance, DHS has changed 
the frequency of the evaluation requirement. DHS proposed requiring an 
evaluation every six months, but is reducing the frequency to every 12 
months. This change is intended to better reflect employer practices 
where annual reviews are standard, allowing students and employers to 
better align the evaluations required under this rule with current 
evaluation cycles. In addition, DHS has modified the regulatory text to 
further ensure that employers may rely on their existing training 
programs to meet certain training plan requirements under this rule, so 
long as such training programs otherwise meet the rule's training plan 
requirements. Finally, in response to comments received, DHS has 
updated the estimate of time to complete the Training Plan for STEM OPT 
Students form to 7.5 hours.
    While employers may need to make adjustments due to the training 
plan requirement, DHS views the educational and program integrity 
benefits as outweighing any costs associated with the Training Plan and 
supporting documentation. In addition, it is primarily the student's 
responsibility to complete the Training Plan with the employer and 
submit it to the DSO.
    Finally, DHS disagrees with the comment concerning school revenue. 
DHS presents the costs to schools as a percentage of estimated annual 
revenue in order to assess the impact of universities' costs in the 
context of their overall revenue.
3. The Response of the Agency to Any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration in Response 
to the Proposed Rule, and a Detailed Statement of Any Changes Made to 
the Proposed Rule in the Final Rule as a Result of the Comments
    DHS did not receive comments from the Chief Counsel for Advocacy of 
the Small Business Administration in response to the proposed rule.
4. A Description of and an Estimate of the Number of Small Entities to 
Which the Rule Will Apply or an Explanation of Why No Such Estimate Is 
Available
    DHS conducted a statistically valid sample analysis to estimate the 
number of STEM OPT employers and schools that would be considered small 
entities. To identify the entities that would be considered ``small,'' 
DHS used the SBA guidelines on small business size standards applied by 
NAICS code. This analysis indicated that 48 percent of schools are 
small entities. Based on 1,109 approved and accredited schools 
participating in STEM OPT extensions, about 532 could reasonably be 
expected to be small entities impacted by the rule. Analysis of a 
sample of 26,260 entities that employed students who had obtained STEM 
OPT extensions revealed that about 69 percent were small. Hence, about 
18,000 employers that are small entities could be affected by the rule.
5. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the 
Classes of Small Entities That Will Be Subject to the Requirements and 
the Types of Professional Skills Necessary for Preparation of the 
Report or Record
    The final rule requires assurance that STEM OPT students develop, 
with their employers, a training plan. When completed, students submit 
the Training Plan for STEM OPT Students form to their DSOs when 
requesting the 24-month STEM OPT extension. The DSO must retain a copy 
of the form. The student and employer must ensure that any modified 
Training Plan is submitted to the student's DSO (at the earliest 
available opportunity). The student and employer must sign the modified 
Training Plan reflecting the material change(s) or deviation(s). 
Additionally, students will be required to update the form every 12 
months to include a progress report on accomplishments and skills or 
knowledge obtained. Employers must meet with the student and sign the 
12-month evaluation, and DSOs will check to ensure the evaluation has 
been completed and retain a copy.
Schools
    Under the final rule, students must provide the completed Training 
Plan for STEM OPT Students forms to their DSOs to request STEM OPT 
extensions. DHS's analysis includes an opportunity cost of time for 
reviewing the form to ensure its proper completion and filing the 
record either electronically or in a paper folder.
    Schools will incur costs providing oversight, reporting STEM OPT 
students' information, and reviewing required documentation. DSOs will 
be required to ensure the form has been properly completed and signed 
prior to making a recommendation in SEVIS. Schools will be required to 
ensure that SEVP has access to student evaluations (electronic or hard 
copy) for a period of at least three years following the completion of 
each STEM practical training opportunity. This rule, like the 2008 IFR, 
requires six-month student validation check-ins with DSOs. While the 
DSO will be in communication with the student during a six-month 
validation check-in, the final rule adds an additional requirement that 
DSOs also check to ensure the 12-month evaluation has been properly 
completed and retain a copy. The final rule maintains the 2008 IFR 
requirements for periodic information reporting requirements on 
students, which results in a burden for DSOs. Table 3 summarizes the 
school costs from the final rule, as described in the Costs section of 
the separate Regulatory Impact Analysis.

                          Table 4--Schools--Cost of Compliance per STEM OPT Opportunity
----------------------------------------------------------------------------------------------------------------
                                                 Calculation of school cost per   Cost in year 1  Cost in year 2
                Final provision                              student                per student     per student
----------------------------------------------------------------------------------------------------------------
Initially Reviewing and Filing Training Plan    (1.33 hours x $39.33)...........          $52.31           $0.00
 Form \1\.
12-Month Evaluation \2\.......................  (1 hour x 1 eval x $39.33)......           39.33           39.33
6-Month Validation Check-Ins \2\..............  (0.17 hours x 2 validation check-          13.37           13.37
                                                 ins x $39.33).

[[Page 13113]]

 
Additional Implementation \2\.................  0.10 x (Training Plan Initial +            10.83            5.27
                                                 eval + validation check-ins
                                                 costs).
Periodic Reports to DSO.......................  0.17 hours x 2 reports x $39.33.           13.37           13.37
                                               -----------------------------------------------------------------
    Total.....................................  ................................          128.88           71.34
----------------------------------------------------------------------------------------------------------------
\1\ Training Plan initial costs are only in year 1 per STEM OPT student.
\2\ Estimated based on 12-month-period.

    DHS estimates the annual impact to schools based on the school cost 
of compliance as a percentage of annual revenue. Second-year costs 
account for new additional STEM OPT extension students. For not-for-
profit schools, DHS multiplied full-time first-year student tuition by 
total number of students to estimate school revenue.\129\ While tuition 
revenue may underestimate actual school revenue, this is the best 
information available to DHS, and certainly the largest source of 
income for most schools. DHS's analysis shows that the first-year 
annual impact for the sampled small-entity schools with sufficient data 
would be less than 1 percent, with the average annual impact being 
0.005 percent. All sampled small-entity schools with sufficient data 
had second-year annual impacts of less than 1 percent, with the average 
annual impact being 0.009 percent.
---------------------------------------------------------------------------

    \129\ U.S. Department of Education, National Center for 
Education Statistics, Institute of Education Sciences, ``Academic 
year prices for full-time, first-time undergraduate students,'' 
(Total enrollment, including Undergraduate and Graduate) 2014-2015, 
Available at http://nces.ed.gov/globallocator/.

                                    Table 5--Schools--Annual Impact in Year 1
----------------------------------------------------------------------------------------------------------------
                                                                  Number of for-  Number of non-
                                                                   profit small    profit small     Percent of
                      Revenue impact range                         entities with   entities with   small entity
                                                                       data            data           schools
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%...............................................               4             137            100%
                                                                 -----------------------------------------------
    Total.......................................................                141                          100
----------------------------------------------------------------------------------------------------------------


                                    Table 6--Schools--Annual Impact in Year 2
----------------------------------------------------------------------------------------------------------------
                                                                  Number of for-  Number of non-
                                                                   profit small    profit small     Percent of
                      Revenue impact range                         entities with   entities with   small entity
                                                                       data            data           schools
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%...............................................               4             137            100%
                                                                 -----------------------------------------------
    Total.......................................................             141             100
----------------------------------------------------------------------------------------------------------------

    Finally, schools not accredited by a Department of Education-
recognized accrediting agency may incur unquantified costs from the 
final rule's prohibition on participation in the STEM OPT extension by 
students attending unaccredited schools. A few schools may choose to 
seek accreditation, or may potentially lose future international 
students and associated revenue.
Employers
    Employers will be required to provide information for certain 
fields in the Training Plan for STEM OPT Students form, review the 
completed form, and attest to the certifications on the form. The final 
rule also prohibits using STEM OPT extension students as volunteers. 
The rule additionally requires that students work at least 20 hours per 
week while on their STEM OPT extension, and that they receive 
commensurate compensation. DHS does not have data on the number of STEM 
OPT students who do not currently receive compensation. Nor does DHS 
have data on the number of STEM OPT students who do not currently 
receive wages or other qualifying compensation that would be considered 
commensurate under the final rule. To the extent that employers are not 
currently compensating STEM OPT students in accordance with the final 
rule, this rulemaking creates additional costs to these employers. In 
the quantified costs, DHS does account for the possible additional 
burden of reviewing the employment terms of similarly situated U.S. 
workers in order to compare the terms and conditions of their 
employment to those of the STEM OPT student's practical training 
opportunity.
    The final rule indicates that DHS, at its discretion, may conduct a 
site visit of an employer. The employer site visit is intended to 
ensure that each employer meets program requirements, including that 
they are complying with their attestations and that they possess the 
ability and resources to provide structured and guided work-based 
learning experiences outlined in students' Training Plans. Site visits 
will be performed at the discretion of DHS either randomly or when DHS 
determines that such an action is needed. The length and scope of such 
a visit would be determined on a case-by-case basis. For law 
enforcement reasons, DHS does not include an estimate of the basis for 
initiating a site visit and is unable to estimate the number of site

[[Page 13114]]

visits that may be conducted, and thus is unable to provide a total 
annual estimated cost for such potential occurrences. However, based on 
previous on-site-reviews to schools, DHS estimates that an employer 
site visit may include review of records and questions for the 
supervisor, and will take five hours per employer. Therefore, DHS 
estimates that if an employer were to receive such a site visit, it 
would cost the employer approximately $394.80 (5 hours x $78.96).\130\
---------------------------------------------------------------------------

    \130\ DHS estimates that this work will be performed by general 
management staff at an hourly rate of $54.08 (as published by the 
May 2014 BLS Occupational Employment and Wage Estimates), which we 
multiply by 1.46 to account for employee benefits to obtain a total 
hourly labor cost of $78.96. Calculated 1.46 by dividing total 
compensation for all workers of $33.13 by wages and salaries for all 
workers of $22.65 per hour (yields a benefits multiplier of 
approximately 1.46 x wages). Bureau of Labor Statistics, Employer 
Costs for Employee Compensation, Table 1. Employer costs per hour 
worked for employee compensation and costs as a percent of total 
compensation: Civilian workers, by major occupational and industry 
group, December 2014.'' Available at: http://www.bls.gov/news.release/archives/ecec_03112015.htm.

                                     Table 7--Employers--Cost of Compliance
----------------------------------------------------------------------------------------------------------------
                Final provision                       Calculation of costs        Cost in year 1  Cost in year 2
----------------------------------------------------------------------------------------------------------------
Initially Completing Training Plan Form \1\...  (3 hours x $78.96) + (1 hour x           $280.81           $0.00
                                                 $43.93).
12-Month Evaluations \2\......................  (0.75 hours x 1 eval x $78.96)..           59.22           59.22
Additional Implementation.....................  0.1 x (Training Plan Initial +             34.00            5.92
                                                 evals costs).
                                                                                 -------------------------------
Employer STEM OPT Costs per Student =.........  Total...........................          374.03           65.14
                                                                                 -------------------------------
Cost for E-Verify per New Hire Case...........  (0.16 hours x $43.93)...........            7.03            7.03
E-Verify Enrollment & Setup...................  (2.26 hours x $80.12) + $100....          281.07            0.00
E-Verify Annual Training & Maintenance........  (1 hour x $43.93) + $398........          441.93          441.93
Compliance Site Visit.........................  ([5 hours x $78.96] + [5 hours x            0.00          614.45
                                                 $43.93]).
                                                                                 -------------------------------
E-Verify and Site Visit Employer Costs =......  Total...........................          723.00        1,056.38
----------------------------------------------------------------------------------------------------------------
\1\ Training Plan initial costs are only in year 1 per STEM OPT student.
\2\Estimated based on 12-month-period.

    DHS estimates the annual impact to employers based on the employer 
cost of compliance as a percentage of annual revenue. Second-year costs 
include initial submission of Training Plans for new STEM OPT students 
who will be hired in the second year. For not-for-profit school 
employers without revenue data, DHS multiplied the tuition per full-
time first-year student with total enrollment numbers to estimate their 
revenue. DHS's analysis shows that the first- and second-year annual 
impact for 99 percent of the sampled small entities with sufficient 
data would be less than 1 percent, with the average first-year annual 
revenue impact being 0.11 percent and second-year annual revenue impact 
being 0.13 percent. Additionally, the cost impact per employer included 
a compliance site visit in year 2; therefore, costs could be less for 
employers that do not receive a site visit.

                                   Table 8--Employers--Annual Impact in Year 1
----------------------------------------------------------------------------------------------------------------
                                                                  Number of for-  Number of non-
                                                                   profit small    profit small     Percent of
                      Revenue impact range                         entities with   entities with   small entity
                                                                       data            data          employers
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%...............................................             240               7             99%
1% < Impact <= 3%...............................................               2               0               1
                                                                 -----------------------------------------------
    Total.......................................................                249                        100.0
----------------------------------------------------------------------------------------------------------------


                                   Table 9--Employers--Annual Impact in Year 2
----------------------------------------------------------------------------------------------------------------
                                                                  Number of for-  Number of non-
                                                                   profit small    profit small     Percent of
                      Revenue impact range                         entities with   entities with   small entity
                                                                       data            data          employers
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%...............................................             239               7             99%
1% < Impact <= 3%...............................................               3               0               1
                                                                 -----------------------------------------------
    Total.......................................................                249                        100.0
----------------------------------------------------------------------------------------------------------------

Current Employers That Do Not Continue to Participate
    Due to additional employer requirements that must be met in order 
to receive the benefit of a STEM OPT extension opportunity, some 
employers (such as temporary employment agencies) will no longer be 
allowed to participate in STEM OPT extensions. DHS has not attempted to 
quantify costs associated with this possible impact on employers due to 
lack of available information on employers that would fall under this 
category and the associated economic impacts.

[[Page 13115]]

6. A description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule, and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected
    DHS recognizes that the final rule will increase requirements on 
schools and employers of STEM OPT students. DHS has tried to minimize, 
to the extent possible, the small entity economic impacts of the final 
rule by structuring the program such that students are largely 
responsible for meeting its requirements. This not only minimizes the 
burden of the final program on schools and employers but also helps to 
ensure that students, who are the most direct beneficiaries of the 
practical training opportunities, bear an equitable amount of 
responsibility.
    DHS has tried to minimize additional DSO responsibilities while 
balancing the need for oversight. For example, Training Plan 
evaluations will be conducted and submitted annually, rather than semi-
annually, as DHS had initially proposed.
    DHS has tried to provide flexibility for small entities in methods 
they can use to meet the commensurate duties, hours, and compensation 
requirements for STEM OPT students. The final rule allows employers to 
perform an analysis that uses their own wage and compensation data to 
determine how to compensate their STEM OPT employee in a comparable 
manner to their similarly situated U.S. workers. This provides small 
entities flexibility rather than applying a prescriptive national, 
state, or metropolitan data requirement. And because small entities may 
not have similarly situated U.S. workers, the rule provides alternative 
options, discussed in the preamble, for compliance with the requirement 
to provide commensurate compensation. Finally, the rule allows 
employers to meet some of the Training Plan requirements using existing 
training programs.
    DHS will engage in further stakeholder outreach activities and 
provide clarifying information as appropriate. DHS envisions that this 
outreach will reduce the burden that may result from small entities' 
uncertainty in how to comply with the requirements.
    As explained in greater detail in Chapter 8 of the RIA, DHS 
examined three alternative options that could have reduced the burden 
of the rule on small entities. The alternatives considered were (1) no 
regulatory action, (2) no change in the duration of the STEM OPT 
extension, and (3) requiring a six month evaluation. DHS rejected these 
alternatives. First, without regulatory action, OPT students would no 
longer be allowed to work or reside in the United States past their 12-
month post-completion OPT period. This would deter future international 
students who would pursue STEM degrees from applying to U.S. 
educational institutions, and reduce the attractiveness of U.S. 
educational institutions compared to educational systems in other 
countries that have more flexible student work programs. Second, 
without increasing the duration of the STEM OPT extension, students' 
practical training opportunities would not be long enough to complement 
the student's academic experience and allow for a meaningful 
educational experience, particularly given the complex nature of STEM 
projects. After weighing the advantages and disadvantages of each 
alternative, DHS elected to improve and extend the STEM OPT program in 
order to increase students' ability to gain valuable knowledge and 
skills through on-the-job training in their field that may be 
unavailable in their home countries, increase global attractiveness of 
U.S. colleges and universities, increase program oversight and 
strengthen requirements for program participation, and institute new 
protections for U.S. workers.

C. Small Business Regulatory Enforcement Fairness Act of 1996

    Pursuant to Sec. 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, Public Law 104-121, DHS wants to 
assist small entities in understanding this rule. If the rule would 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions, please consult DHS 
using the contact information provided in the FOR FURTHER INFORMATION 
CONTACT section above. DHS will not retaliate against small entities 
that question or complain about this rule or about any DHS policy or 
action related to this rule.

D. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government in 
the aggregate, or by the private sector, of $100,000,000 (adjusted for 
inflation) or more in any year. Although this rule would not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

E. Congressional Review Act

    DHS has sent this final rule to the Congress and to Comptroller 
General under the Congressional Review Act, 5 U.S.C. 801 et seq. This 
rule is a ``major rule'' within the meaning of the Congressional Review 
Act.

F. Collection of Information

    Federal agencies are required to submit to OMB, for review and 
approval, any reporting or recordkeeping requirements inherent in a 
rule under the Paperwork Reduction Act of 1995, as amended, 44 U.S.C. 
3501-3520. Under the Paperwork Reduction Act, an agency may not conduct 
or sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.
    DHS has submitted the following information collection request to 
the OMB for review and approval in accordance with the review 
procedures of the Paperwork Reduction Act. The information collection 
requirements are outlined in this rule. The rule maintains the 2008 IFR 
revisions to previously approved information collections. The 2008 IFR 
impacted information collections for Form I-765, Application for 
Employment Authorization (OMB Control No. 1615-0040); SEVIS and Form I-
20, Certificate of Eligibility for Nonimmigrant Student Status (both 
OMB Control No. 1653-0038); and E-Verify (OMB Control No. 1615-0092). 
These four approved information collections corresponding to the 2008 
IFR include the number of respondents, responses and burden hours 
resulting from the 2008 IFR requirements, which remain in this final 
rule. Therefore DHS is not revising the burden estimates for these four 
information collections. Additional responses tied to new changes to 
STEM OPT eligibility will minimally increase the number of responses 
and burden for Form I-765 and E-Verify information collections, as the 
two collections cover a significantly broader population of respondents 
and responses than those impacted by the rule and already account for 
growth in the number of responses in their respective published 
information collection notices burden estimates.
    As part of this rule, DHS is creating a new information collection 
instrument for the Training Plan for STEM OPT

[[Page 13116]]

Students, which is now available at https://studyinthestates.dhs.gov/. 
This information collection is necessary to enable reporting and 
attesting to specified information relating to STEM OPT extensions, to 
be executed by STEM OPT students and their employers. Such reporting 
will include goals and objectives, progress, hours, and compensation. 
Attestations will ensure proper training opportunities for students and 
safeguard interests of U.S. workers in related fields.
    Additionally, DHS is making minor non-substantive changes to the 
instructions to Form I-765 to reflect changes to the F-1 regulations 
that lengthen the STEM OPT extension and allow applicants to file Form 
I-765 with USCIS within 60 days (rather than 30 days) from the date the 
DSO endorses the STEM OPT extension. Accordingly, USCIS submitted an 
OMB 83-C, Correction Worksheet, to OMB, which reviewed and approved the 
minor edits to the Form I-765 instructions.
    Overview of New Information Collection- Training Plan for STEM OPT 
Students
    (1) Type of Information Collection: New Collection.
    (2) Title of the Form/Collection: Training Plan for STEM OPT 
Students.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: Immigration and Customs Enforcement Form I-
983;
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract:
     Primary: Students with F-1 nonimmigrant status, state 
governments, local governments, educational institutions, businesses, 
and other for-profit and not-for-profit organizations.
     Other: None.
     Abstract: DHS is publishing a final rule that makes 
certain changes to the STEM OPT extension first introduced by the 2008 
IFR. The rule lengthens the duration of the STEM OPT extension to 24 
months; requires a Training Plan executed by STEM OPT students and 
their employers; requires that the plan include assurances to safeguard 
students and the interests of U.S. workers in related fields; and 
requires that the plan include objective-tracking and reporting 
requirements. The rule requires students and employers (through an 
appropriate signatory official) to report on the Training Plan certain 
specified information relating to STEM OPT extensions. For instance, 
the Training Plan explains how the practical training is directly 
related to the student's qualifying STEM degree; explains the specific 
goals of the STEM practical training opportunity and how those goals 
will be achieved through the work-based learning opportunity with the 
employer, including details of the knowledge, skills, or techniques to 
be imparted to the student; identifies the performance evaluation 
process; and describes the methods of oversight and supervision. The 
Training Plan also includes a number of employer attestations intended 
to ensure the educational benefit of the practical training experience, 
protect STEM OPT students, and protect against appreciable adverse 
consequences on U.S. workers. The rule also requires schools to collect 
and retain this information for a period of three years following the 
completion of each STEM practical training opportunity.
    5. An estimate of the total annual average number of respondents, 
annual average number of responses, and the total amount of time 
estimated for respondents in an average year to collect, provide 
information, and keep the required records is:
     42,092 STEM OPT student respondents; 1,109 accredited 
schools endorsing STEM OPT students; and 16,891 employers of STEM OPT 
students.
     42,092 average responses annually at 7.5 hours per initial 
Training Plan response.
     70,153 average responses annually at 3.66 hours per 12-
month evaluation response by STEM OPT students, DSOs, and employers.
    6. An estimate of the total public burden (in hours) associated 
with the collection: 566,698 hours.
    The recordkeeping requirements set forth by this rule are new 
requirements that require a new OMB Control Number.
    During the NPRM, DHS sought comment on these proposed requirements. 
DHS received a number of comments on the burden potentially imposed by 
the proposed rule. The comments, and DHS's responses to those comments, 
can be found in the discussion of public comments regarding Form I-983 
in section IV of this preamble. The final form and instructions are 
available in the docket for this rulemaking.

G. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it does not have implications for federalism.

H. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy.

J. Environment

    The U.S. Department of Homeland Security Management Directive (MD) 
023-01 Rev. 01 establishes procedures that DHS and its components use 
to comply with the National Environmental Policy Act of 1969 (NEPA), 42 
U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ) 
regulations for implementing NEPA, 40 CFR parts 1500-1508. CEQ 
regulations allow federal agencies to establish categories of actions, 
which do not individually or cumulatively have a significant effect on 
the human environment and, therefore, do not require an Environmental 
Assessment or Environmental Impact Statement. 40 CFR 1508.4. The MD 
023-01 Rev. 01 lists the Categorical Exclusions that DHS has found to 
have no such effect. MD 023-01 Rev. 01 Appendix A Table 1.
    For an action to be categorically excluded, MD 023-01 Rev. 01 
requires the action to satisfy each of the following three conditions:
    (1) The entire action clearly fits within one or more of the 
Categorical Exclusions.
    (2) The action is not a piece of a larger action.
    (3) No extraordinary circumstances exist that create the potential 
for a significant environmental effect. MD 023-01 Rev. 01 section 
V.B(1)-(3).
    Where it may be unclear whether the action meets these conditions, 
MD 023-01 Rev. 01 requires the administrative record to reflect 
consideration of these conditions. MD 023-01 Rev. 01 section V.B.
    DHS has analyzed this rule under MD 023-01 Rev. 01. DHS has 
determined that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on

[[Page 13117]]

the human environment. This rule clearly fits within the Categorical 
Exclusion found in MD 023-01 Rev. 01, Appendix A, Table 1, number 
A3(a): ``Promulgation of rules . . . of a strictly administrative or 
procedural nature;'' and A3(d): ``Promulgation of rules . . . that 
interpret or amend an existing regulation without changing its 
environmental effect.'' This rule is not part of a larger action. This 
rule presents no extraordinary circumstances creating the potential for 
significant environmental effects. Therefore, this rule is 
categorically excluded from further NEPA review.

K. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

L. Taking of Private Property

    This rule would not cause a taking of private property or otherwise 
have takings implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

M. Protection of Children

    DHS has analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
would not create an environmental risk to health or risk to safety that 
might disproportionately affect children.

N. Technical Standards

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the OMB, with an explanation of why using these standards would 
be inconsistent with applicable law or otherwise impracticable. 
Voluntary consensus standards are technical standards (e.g., 
specifications of materials, performance, design, or operation; test 
methods; sampling procedures; and related management systems practices) 
that are developed or adopted by voluntary consensus standards bodies. 
This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

The Amendments

    For the reasons set forth in the preamble, the Department of 
Homeland Security amends parts 214 and 274a of Chapter 1 of Title 8 of 
the Code of Federal Regulations as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. Revise the authority citation for part 214 to read as follows:

    Authority: 6 U.S.C. 111 and 202; 8 U.S.C. 1101, 1102, 1103, 
1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1324a, 1372 
and 1762; Sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 
106-386, 114 Stat. 1477-1480; Pub. L. 107-173, 116 Stat. 543; 
section 141 of the Compacts of Free Association with the Federated 
States of Micronesia and the Republic of the Marshall Islands, and 
with the Government of Palau, 48 U.S.C. 1901 note, and 1931 note, 
respectively; 48 U.S.C. 1806; 8 CFR part 2.

0
2. Amend Sec.  214.2 by revising paragraphs (f)(5)(vi), 
(f)(10)(ii)(A)(3), (f)(10)(ii)(C), (D), and (E), and (f)(11) and (12) 
to read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (f) * * *
    (5) * * *
    (vi) Extension of duration of status and grant of employment 
authorization. (A) The duration of status, and any employment 
authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), of an F-1 
student who is the beneficiary of an H-1B petition subject to section 
214(g)(1)(A) of the Act (8 U.S.C. 1184(g)(1)(A)) and request for change 
of status shall be automatically extended until October 1 of the fiscal 
year for which such H-1B status is being requested where such petition:
    (1) Has been timely filed; and
    (2) Requests an H-1B employment start date of October 1 of the 
following fiscal year.
    (B) The automatic extension of an F-1 student's duration of status 
and employment authorization under paragraph (f)(5)(vi)(A) of this 
section shall automatically terminate upon the rejection, denial, 
revocation, or withdrawal of the H-1B petition filed on such F-1 
student's behalf or upon the denial or withdrawal of the request for 
change of nonimmigrant status, even if the H-1B petition filed on the 
F-1 student's behalf is approved for consular processing.
    (C) In order to obtain the automatic extension of stay and 
employment authorization under paragraph (f)(5)(vi)(A) of this section, 
the F-1 student, consistent with 8 CFR part 248, must not have violated 
the terms or conditions of his or her nonimmigrant status.
    (D) An automatic extension of an F-1 student's duration of status 
under paragraph (f)(5)(vi)(A) of this section also applies to the 
duration of status of any F-2 dependent aliens.
* * * * *
    (10) * * *
    (ii) * * *
    (A) * * *
    (3) After completion of the course of study, or, for a student in a 
bachelor's, master's, or doctoral degree program, after completion of 
all course requirements for the degree (excluding thesis or 
equivalent). Continued enrollment, for the school's administrative 
purposes, after all requirements for the degree have been met does not 
preclude eligibility for optional practical training. A student must 
complete all practical training within a 14-month period following the 
completion of study, except that a 24-month extension pursuant to 
paragraph (f)(10)(ii)(C) of this section does not need to be completed 
within such 14-month period.
* * * * *
    (C) 24-month extension of post-completion OPT for a science, 
technology, engineering, or mathematics (STEM) degree. Consistent with 
paragraph (f)(11)(i)(C) of this section, a qualified student may apply 
for an extension of OPT while in a valid period of post-completion OPT 
authorized under 8 CFR 274a.12(c)(3)(i)(B). An extension will be for 24 
months for the first qualifying degree for which the student has 
completed all course requirements (excluding thesis or equivalent), 
including any qualifying degree as part of a dual degree program, 
subject to the requirement in paragraph (f)(10)(ii)(C)(3) of this 
section that previously obtained degrees must have been conferred. If a 
student completes all such course requirements for another qualifying 
degree at a higher degree level than the first, the student may apply 
for a second

[[Page 13118]]

24-month extension of OPT while in a valid period of post-completion 
OPT authorized under 8 CFR 274a.12(c)(3)(i)(B). In no event may a 
student be authorized for more than two lifetime STEM OPT extensions. A 
student who was granted a 17-month OPT extension under the rule issued 
at 73 FR 18944, whether or not such student requests an additional 7-
month period of STEM OPT under 8 CFR 214.16, is considered to have been 
authorized for one STEM OPT extension, and may be eligible for only one 
more STEM OPT extension. Any subsequent application for an additional 
24-month OPT extension under this paragraph (f)(10)(ii)(C) must be 
based on a degree at a higher degree level than the degree that was the 
basis for the student's first OPT extension. In order to qualify for an 
extension of post-completion OPT based upon a STEM degree, all of the 
following requirements must be met.
    (1) Accreditation. The degree that is the basis for the 24-month 
OPT extension is from a U.S. educational institution accredited by an 
accrediting agency recognized by the Department of Education at the 
time of application.
    (2) DHS-approved degree. The degree that is the basis for the 24-
month OPT extension is a bachelor's, master's, or doctoral degree in a 
field determined by the Secretary, or his or her designee, to qualify 
within a science, technology, engineering, or mathematics field.
    (i) The term ``science, technology, engineering or mathematics 
field'' means a field included in the Department of Education's 
Classification of Instructional Programs taxonomy within the two-digit 
series or successor series containing engineering, biological sciences, 
mathematics, and physical sciences, or a related field. In general, 
related fields will include fields involving research, innovation, or 
development of new technologies using engineering, mathematics, 
computer science, or natural sciences (including physical, biological, 
and agricultural sciences).
    (ii) The Secretary, or his or her designee, will maintain the STEM 
Designated Degree Program List, which will be a complete list of 
qualifying degree program categories, published on the Student and 
Exchange Visitor Program Web site at http://www.ice.gov/sevis. Changes 
that are made to the Designated Degree Program List may also be 
published in a notice in the Federal Register. All program categories 
included on the list must be consistent with the definition set forth 
in paragraph (f)(10)(ii)(C)(2)(i) of this section.
    (iii) At the time the DSO recommends a 24-month OPT extension under 
this paragraph (f)(10)(ii)(C) in SEVIS, the degree that is the basis 
for the application for the OPT extension must be contained within a 
category on the STEM Designated Degree Program List.
    (3) Previously obtained STEM degree(s). The degree that is the 
basis for the 24-month OPT extension under this paragraph 
(f)(10)(ii)(C) may be, but is not required to be, the degree that is 
the basis for the post-completion OPT period authorized under 8 CFR 
274a.12(c)(3)(i)(B). If an application for a 24-month OPT extension 
under this paragraph (f)(10)(ii)(C) is based upon a degree obtained 
previous to the degree that provided the basis for the period of post-
completion OPT authorized under 8 CFR 274a.12(c)(3)(i)(B), that 
previously obtained degree must have been conferred from a U.S. 
educational institution that is accredited and SEVP-certified at the 
time the student's DSO recommends the student for the 24-month OPT 
extension and must be in a degree program category included on the 
current STEM Designated Degree Program List at the time of the DSO 
recommendation. That previously obtained degree must have been 
conferred within the 10 years preceding the date the DSO recommends the 
student for the 24-month OPT extension.
    (4) Eligible practical training opportunity. The STEM practical 
training opportunity that is the basis for the 24-month OPT extension 
under this paragraph (f)(10)(ii)(C) must be directly related to the 
degree that qualifies the student for such extension, which may be the 
previously obtained degree described in paragraph (f)(10)(ii)(C)(3) of 
this section.
    (5) Employer qualification. The student's employer is enrolled in 
E-Verify, as evidenced by either a valid E-Verify Company 
Identification number or, if the employer is using an employer agent to 
create its E-Verify cases, a valid E-Verify Client Company 
Identification number, and the employer remains a participant in good 
standing with E-Verify, as determined by USCIS. An employer must also 
have an employer identification number (EIN) used for tax purposes.
    (6) Employer reporting. A student may not be authorized for 
employment with an employer pursuant to paragraph (f)(10)(ii)(C)(2) of 
this section unless the employer agrees, by signing the Training Plan 
for STEM OPT Students, Form I-983 or successor form, to report the 
termination or departure of an OPT student to the DSO at the student's 
school, if the termination or departure is prior to the end of the 
authorized period of OPT. Such reporting must be made within five 
business days of the termination or departure. An employer shall 
consider a student to have departed when the employer knows the student 
has left the practical training opportunity, or if the student has not 
reported for his or her practical training for a period of five 
consecutive business days without the consent of the employer, 
whichever occurs earlier.
    (7) Training Plan for STEM OPT Students, Form I-983 or successor 
form. (i) A student must fully complete an individualized Form I-983 or 
successor form and obtain requisite signatures from an appropriate 
individual in the employer's organization on the form, consistent with 
form instructions, before the DSO may recommend a 24-month OPT 
extension under paragraph (f)(10)(ii)(C)(2) of this section in SEVIS. A 
student must submit the Form I-983 or successor form, which includes a 
certification of adherence to the training plan completed by an 
appropriate individual in the employer's organization who has signatory 
authority for the employer, to the student's DSO, prior to the new DSO 
recommendation. A student must present his or her signed and completed 
Form I-983 or successor form to a DSO at the educational institution of 
his or her most recent enrollment. A student, while in F-1 student 
status, may also be required to submit the Form I-983 or successor form 
to ICE and/or USCIS upon request or in accordance with form 
instructions.
    (ii) The training plan described in the Form I-983 or successor 
form must identify goals for the STEM practical training opportunity, 
including specific knowledge, skills, or techniques that will be 
imparted to the student, and explain how those goals will be achieved 
through the work-based learning opportunity with the employer; describe 
a performance evaluation process; and describe methods of oversight and 
supervision. Employers may rely on their otherwise existing training 
programs or policies to satisfy the requirements relating to 
performance evaluation and oversight and supervision, as applicable.
    (iii) The training plan described in the Form I-983 or successor 
form must explain how the training is directly related to the student's 
qualifying STEM degree.
    (iv) If a student initiates a new practical training opportunity 
with a new employer during his or her 24-month OPT extension, the 
student must submit, within 10 days of beginning the new practical 
training opportunity, a

[[Page 13119]]

new Form I-983 or successor form to the student's DSO, and subsequently 
obtain a new DSO recommendation.
    (8) Duties, hours, and compensation for training. The terms and 
conditions of a STEM practical training opportunity during the period 
of the 24-month OPT extension, including duties, hours, and 
compensation, must be commensurate with terms and conditions applicable 
to the employer's similarly situated U.S. workers in the area of 
employment. A student may not engage in practical training for less 
than 20 hours per week, excluding time off taken consistent with leave-
related policies applicable to the employer's similarly situated U.S. 
workers in the area of employment. If the employer does not employ and 
has not recently employed more than two similarly situated U.S. workers 
in the area of employment, the employer nevertheless remains obligated 
to attest that the terms and conditions of a STEM practical training 
opportunity are commensurate with the terms and conditions of 
employment for other similarly situated U.S. workers in the area of 
employment. ``Similarly situated U.S. workers'' includes U.S. workers 
performing similar duties subject to similar supervision and with 
similar educational backgrounds, industry expertise, employment 
experience, levels of responsibility, and skill sets as the student. 
The duties, hours, and compensation of such students are 
``commensurate'' with those offered to U.S. workers employed by the 
employer in the same area of employment when the employer can show that 
the duties, hours, and compensation are consistent with the range of 
such terms and conditions the employer has offered or would offer to 
similarly situated U.S. employees. The student must disclose his or her 
compensation, including any adjustments, as agreed to with the 
employer, on the Form I-983 or successor form.
    (9) Evaluation requirements and Training Plan modifications. (i) A 
student may not be authorized for employment with an employer pursuant 
to paragraph (f)(10)(ii)(C)(2) of this section unless the student 
submits a self-evaluation of the student's progress toward the training 
goals described in the Form I-983 or successor form. All required 
evaluations must be completed prior to the conclusion of a STEM 
practical training opportunity, and the student and an appropriate 
individual in the employer's organization must sign each evaluation to 
attest to its accuracy. All STEM practical training opportunities 
require an initial evaluation within 12 months of the approved starting 
date on the employment authorization document granted pursuant to the 
student's 24-month OPT extension application, and a concluding 
evaluation. The student is responsible for ensuring the DSO receives 
his or her 12-month evaluation and final evaluation no later than 10 
days following the conclusion of the reporting period or conclusion of 
his or her practical training opportunity, respectively.
    (ii) If any material change to or deviation from the training plan 
described in the Form I-983 or successor form occurs, the student and 
employer must sign a modified Form I-983 or successor form reflecting 
the material change(s) or deviation(s). Material changes and deviations 
relating to training may include, but are not limited to, any change of 
Employer Identification Number resulting from a corporate 
restructuring, any reduction in compensation from the amount previously 
submitted on the Form I-983 or successor form that is not tied to a 
reduction in hours worked, any significant decrease in hours per week 
that a student engages in a STEM training opportunity, and any decrease 
in hours worked below the minimum hours for the 24-month extension as 
described in paragraph (f)(10)(ii)(C)(8) of this section. Material 
changes and deviations also include any change or deviation that 
renders an employer attestation inaccurate, or renders inaccurate the 
information in the Form I-983 or successor form on the nature, purpose, 
oversight, or assessment of the student's practical training 
opportunity. The student and employer must ensure that the modified 
Form I-983 or successor form is submitted to the student's DSO at the 
earliest available opportunity.
    (iii) The educational institution whose DSO is responsible for 
duties associated with the student's latest OPT extension under 
paragraph (f)(10)(ii)(C)(2) of this section is responsible for ensuring 
the Student and Exchange Visitor Program has access to each 
individualized Form I-983 or successor form and associated student 
evaluations (electronic or hard copy), including through SEVIS if 
technologically available, beginning within 30 days after the document 
is submitted to the DSO and continuing for a period of three years 
following the completion of each STEM practical training opportunity.
    (10) Additional STEM opportunity obligations. A student may only 
participate in a STEM practical training opportunity in which the 
employer attests, including by signing the Form I-983 or successor 
form, that:
    (i) The employer has sufficient resources and personnel available 
and is prepared to provide appropriate training in connection with the 
specified opportunity at the location(s) specified in the Form I-983 or 
successor form;
    (ii) The student on a STEM OPT extension will not replace a full- 
or part-time, temporary or permanent U.S. worker; and
    (iii) The student's opportunity assists the student in reaching his 
or her training goals.
    (11) Site visits. DHS, at its discretion, may conduct a site visit 
of any employer. The purpose of the site visit is for DHS to ensure 
that each employer possesses and maintains the ability and resources to 
provide structured and guided work-based learning experiences 
consistent with any Form I-983 or successor form completed and signed 
by the employer. DHS will provide notice to the employer 48 hours in 
advance of any site visit, except notice may not be provided if the 
visit is triggered by a complaint or other evidence of noncompliance 
with the regulations in this paragraph (f)(10)(ii)(C).
    (D) Duration of status while on post-completion OPT. For a student 
with approved post-completion OPT, the duration of status is defined as 
the period beginning on the date that the student's application for OPT 
was properly filed and pending approval, including the authorized 
period of post-completion OPT, and ending 60 days after the OPT 
employment authorization expires.
    (E) Periods of unemployment during post-completion OPT. During 
post-completion OPT, F-1 status is dependent upon employment. Students 
may not accrue an aggregate of more than 90 days of unemployment during 
any post-completion OPT period described in 8 CFR 274a.12(c)(3)(i)(B). 
Students granted a 24-month OPT extension under paragraph 
(f)(10)(ii)(C)(2) of this section may not accrue an aggregate of more 
than 150 days of unemployment during a total OPT period, including any 
post-completion OPT period described in 8 CFR 274a.12(c)(3)(i)(B) and 
any subsequent 24-month extension period.
    (11) OPT application and approval process--(i) Student 
responsibilities. A student must initiate the OPT application process 
by requesting a recommendation for OPT from his or her DSO. Upon making 
the recommendation, the DSO will provide the student a signed Form I-20 
indicating that recommendation.
    (A) Applications for employment authorization. The student must 
properly file an Application for

[[Page 13120]]

Employment Authorization, Form I-765 or successor form, with USCIS, 
accompanied by the required fee, and the supporting documents, as 
described in the form's instructions.
    (B) Applications and filing deadlines for pre-completion OPT and 
post-completion OPT--(1) Pre-completion OPT. For pre-completion OPT, 
the student may properly file his or her Form I-765 or successor form 
up to 90 days before being enrolled for one full academic year, 
provided that the period of employment will not start prior to the 
completion of the full academic year.
    (2) Post-completion OPT. For post-completion OPT, not including a 
24-month OPT extension under paragraph (f)(10)(ii)(C)(2) of this 
section, the student may properly file his or her Form I-765 or 
successor form up to 90 days prior to his or her program end date and 
no later than 60 days after his or her program end date. The student 
must also file his or her Form I-765 or successor form with USCIS 
within 30 days of the date the DSO enters the recommendation for OPT 
into his or her SEVIS record.
    (C) Applications and filing deadlines for 24-month OPT extension. A 
student meeting the eligibility requirements for a 24-month OPT 
extension under paragraph (f)(10)(ii)(C) of this section may request an 
extension of employment authorization by filing Form I-765 or successor 
form, with the required fee and supporting documents, up to 90 days 
prior to the expiration date of the student's current OPT employment 
authorization. The student seeking such 24-month OPT extension must 
properly file his or her Form I-765 or successor form with USCIS within 
60 days of the date the DSO enters the recommendation for the OPT 
extension into his or her SEVIS record. If a student timely and 
properly files an application for such 24-month OPT extension and 
timely and properly requests a DSO recommendation, including by 
submitting the fully executed Form I-983 or successor form to his or 
her DSO, but the Employment Authorization Document, Form I-766 or 
successor form, currently in the student's possession expires prior to 
the decision on the student's application for the OPT extension, the 
student's Form I-766 or successor form is extended automatically 
pursuant to the terms and conditions specified in 8 CFR 
274a.12(b)(6)(iv).
    (D) Start of OPT employment. A student may not begin OPT employment 
prior to the approved start date on his or her Employment Authorization 
Document, Form I-766 or successor form, except as described in 
paragraph (f)(11)(i)(C) of this section. A student may not request a 
start date that is more than 60 days after the student's program end 
date. Employment authorization will begin on the date requested or the 
date the employment authorization is adjudicated, whichever is later.
    (ii) Additional DSO responsibilities. A student must have a 
recommendation from his or her DSO in order to apply for OPT. When a 
DSO recommends a student for OPT, the school assumes the added 
responsibility for maintaining the SEVIS record of that student for the 
entire period of authorized OPT, consistent with paragraph (f)(12) of 
this section.
    (A) Prior to making a recommendation, the DSO at the educational 
institution of the student's most recent enrollment must ensure that 
the student is eligible for the given type and period of OPT and that 
the student is aware of the student's responsibilities for maintaining 
status while on OPT. Prior to recommending a 24-month OPT extension 
under paragraph (f)(10)(ii)(C) of this section, the DSO at the 
educational institution of the student's most recent enrollment must 
certify that the student's degree being used to qualify that student 
for the 24-month OPT extension, as shown in SEVIS or official 
transcripts, is a bachelor's, master's, or doctorate degree with a 
degree code that is contained within a category on the current STEM 
Designated Degree Program List at the time the recommendation is made. 
A DSO may recommend a student for a 24-month OPT extension under 
paragraph (f)(10)(ii)(C) of this section only if the Form I-983 or 
successor form described in paragraph (f)(10)(ii)(C)(7) of this section 
has been properly completed and executed by the student and prospective 
employer. A DSO may not recommend a student for an OPT extension under 
paragraph (f)(10)(ii)(C) of this section if the practical training 
would be conducted by an employer who has failed to meet the 
requirements under paragraphs (f)(10)(ii)(C)(5) through (9) of this 
section or has failed to provide the required assurances of paragraph 
(f)(10)(ii)(C)(10) of this section.
    (B) The DSO must update the student's SEVIS record with the DSO's 
recommendation for OPT before the student can apply to USCIS for 
employment authorization. The DSO will indicate in SEVIS whether the 
OPT employment is to be full-time or part-time, or for a student 
seeking a recommendation for a 24-month OPT extension under paragraph 
(f)(10)(ii)(C) of this section whether the OPT employment meets the 
minimum hours requirements described in paragraph (f)(10)(ii)(C)(8) of 
this section, and note in SEVIS the OPT start and end dates.
    (C) The DSO must provide the student with a signed, dated Form I-20 
or successor form indicating that OPT has been recommended.
    (iii) Decision on application for OPT employment authorization. 
USCIS will adjudicate a student's Form I-765 or successor form on the 
basis of the DSO's recommendation and other eligibility considerations.
    (A) If granted, the employment authorization period for post-
completion OPT begins on the requested date of commencement or the date 
the Form I-765 or successor form is approved, whichever is later, and 
ends at the conclusion of the remaining time period of post-completion 
OPT eligibility. The employment authorization period for a 24-month OPT 
extension under paragraph (f)(10)(ii)(C) of this section begins on the 
day after the expiration of the initial post-completion OPT employment 
authorization and ends 24 months thereafter, regardless of the date the 
actual extension is approved.
    (B) USCIS will notify the applicant of the decision on the Form I-
765 or successor form in writing, and, if the application is denied, of 
the reason or reasons for the denial.
    (C) The applicant may not appeal the decision.
    (12) Reporting while on optional practical training--(i) General. 
An F-1 student who is granted employment authorization by USCIS to 
engage in optional practical training is required to report any change 
of name or address, or interruption of such employment to the DSO for 
the duration of the optional practical training. A DSO who recommends a 
student for OPT is responsible for updating the student's record to 
reflect these reported changes for the duration of the time that 
training is authorized.
    (ii) Additional reporting obligations for students with an approved 
24-month OPT extension. Students with an approved 24-month OPT 
extension under paragraph (f)(10)(ii)(C) of this section have 
additional reporting obligations. Compliance with these reporting 
requirements is required to maintain F-1 status. The reporting 
obligations are:
    (A) Within 10 days of the change, the student must report to the 
student's DSO a change of legal name, residential or mailing address, 
employer name, employer address, and/or loss of employment.
    (B) The student must complete a validation report, confirming that 
the

[[Page 13121]]

information required by paragraph (f)(12)(ii)(A) of this section has 
not changed, every six months. The requirement for validation reporting 
starts on the date the 24-month OPT extension begins and ends when the 
student's F-1 status expires or the 24-month OPT extension concludes, 
whichever is first. The validation report is due to the student's DSO 
within 10 business days of each reporting date.
* * * * *
0
3. In Sec.  214.3, revise paragraph (g)(2)(ii)(F) to read as follows:


Sec.  214.3  Approval of schools for enrollment of F and M 
nonimmigrants.

* * * * *
    (g) * * *
    (2) * * *
    (ii) * * *
    (F) For F-1 students authorized by USCIS to engage in a 24-month 
extension of OPT under 8 CFR 214.2(f)(10)(ii)(C):
    (1) Any change that the student reports to the school concerning 
legal name, residential or mailing address, employer name, or employer 
address; and
    (2) The end date of the student's employment reported by a former 
employer in accordance with 8 CFR 214.2(f)(10)(ii)(C)(6).
* * * * *

0
4. Section Sec.  214.16 is added, effective May 10, 2016 through May 
10, 2019, to read as follows:


Sec.  214.16  Transition Procedures for OPT Applications for Employment 
Authorization

    (a) STEM OPT Applications for Employment Authorization that are 
filed prior to, and remain pending on May 10, 2016. (1) On or after May 
10, 2016, USCIS will issue Requests for Evidence (RFEs) to students 
whose applications for a 17-month OPT extension under the rule issued 
at 73 FR 18944 are still pending. The RFEs will request documentation 
that will establish that the student is eligible for a 24-month OPT 
extension under 8 CFR 214.2(f)(10)(ii)(C), including a Form I-20 
endorsed on or after May 10, 2016, indicating that the Designated 
School Official (DSO) recommends the student for a 24-month OPT 
extension and that the requirements for such an extension have been 
met. Submission of the Form I-20 in response to an RFE issued under 8 
CFR 214.16(a) will be regarded as fulfilling the requirement in 8 CFR 
214.2(f)(11)(i) that a student must initiate the OPT application 
process by requesting a recommendation for OPT by his or her DSO.
    (2) Forms I-765 that are filed prior to, and remain pending on, May 
10, 2016, will be regarded as being covered by 8 CFR 214.2(f)(11)(i)(C) 
and 8 CFR 274a.12(b)(6)(iv).
    (b) STEM OPT Applications for Employment Authorization that are 
filed and approved before May 10, 2016. A student whose Form I-765 is 
filed and approved prior to May 10, 2016 will be issued an Employment 
Authorization Document, Form I-766, that is valid for 17 months even if 
the student requested a 24-month OPT extension.
    (c) Students with 17-Month STEM OPT employment authorization. (1) 
Subject to paragraph (c)(3) of this section, any Employment 
Authorization Document, Form I-766, indicating a 17-month OPT extension 
under the rule issued at 73 FR 18944 that has been issued and is valid 
prior to May 10, 2016 remains valid until such Form I-766 expires or is 
terminated or revoked under 8 CFR 274a.14, and the student, the 
student's employer, and the student's DSO must continue to abide by all 
the terms and conditions that were in effect when the Form I-766 was 
issued.
    (2) Subject to the requirements in paragraphs (c)(2)(i) through 
(iii) of this section, F-1 students with a 17-month OPT extension under 
the rule issued at 73 FR 18944 are eligible to apply for an additional 
7-month period of OPT. The F-1 student applying for the additional 7-
month period of OPT must:
    (i) Properly file a Form I-765, with USCIS on or after May 10, 2016 
and on or before August 8, 2016, and within 60 days of the date the DSO 
enters the recommendation for the 24-month OPT extension into the 
student's SEVIS record, with applicable fees and supporting 
documentation, as described in the form instructions;
    (ii) Have at least 150 calendar days remaining prior to the end of 
his or her 17-month OPT extension at the time the Form I-765, is 
properly filed; and
    (iii) Meet all the requirements for the 24-month OPT extension as 
described in 8 CFR 214.2(f)(10)(ii)(C), except the requirement that the 
student must be in a valid period of post-completion OPT authorized 
under 8 CFR 274a.12(c)(3)(i)(B).
    (3) Students on a 17-month OPT extension who apply for and are 
granted an additional 7-month period of OPT shall be considered to be 
in a period of 24-month OPT extension, as authorized under 8 CFR 
214.2(f)(10)(ii)(C). Upon proper filing of the application for the 
additional 7-month OPT extension, the student, the student's employer 
as identified in the student's completed Form I-983 and the student's 
DSO are subject to all requirements of the 24-month OPT extension 
period, except for the 150-day unemployment limit described in 8 CFR 
214.2(f)(10)(ii)(E), which applies to students only upon approval of 
the additional 7-month OPT extension. Subsequent to any denial of the 
application for the additional 7-month extension, the student, the 
student's employer, and the student's DSO must abide by all the terms 
and conditions that were in effect when the 17-month OPT extension was 
issued throughout the remaining validity period of the 17-month OPT 
extension.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
5. The authority citation for part 274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR 
part 2.

Subpart B--Employment Authorization

0
6. In Sec.  274a.12, revise paragraph (b)(6)(iv) and (v) and (c)(3)(i) 
to read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (b) * * *
    (6) * * *
    (iv) An Employment Authorization Document, Form I-766 or successor 
form, under paragraph (c)(3)(i)(C) of this section based on a STEM 
Optional Practical Training extension, and whose timely filed Form I-
765 or successor form is pending and employment authorization and 
accompanying Form I-766 or successor form issued under paragraph 
(c)(3)(i)(B) of this section have expired. Employment is authorized 
beginning on the expiration date of the Form I-766 or successor form 
issued under paragraph (c)(3)(i)(B) of this section and ending on the 
date of USCIS' written decision on the current Form I-765 or successor 
form, but not to exceed 180 days. For this same period, such Form I-766 
or successor form is automatically extended and is considered unexpired 
when combined with a Certificate of Eligibility for Nonimmigrant (F-1/
M-1) Students, Form I-20 or successor form, endorsed by the Designated 
School Official recommending such an extension; or
    (v) Pursuant to 8 CFR 214.2(h) is seeking H-1B nonimmigrant status 
and whose duration of status and employment authorization have been 
extended pursuant to 8 CFR 214.2(f)(5)(vi).
* * * * *
    (c) * * *
    (3) * * *

[[Page 13122]]

    (i)(A) Is seeking pre-completion practical training pursuant to 8 
CFR 214.2(f)(10)(ii)(A)(1) and (2);
    (B) Is seeking authorization to engage in up to 12 months of post-
completion Optional Practical Training (OPT) pursuant to 8 CFR 
214.2(f)(10)(ii)(A)(3); or
    (C) Is seeking a 24-month OPT extension pursuant to 8 CFR 
214.2(f)(10)(ii)(C);
* * * * *

Jeh Charles Johnson,
Secretary of Homeland Security.
[FR Doc. 2016-04828 Filed 3-9-16; 8:45 am]
 BILLING CODE 9111-28-P