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  • News: DHS Final Rule for STEM Students and Cap-Gap Relief

    [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
    
    
    
    
    
    -----------------------------------------------------------------------
    
    
    
    
    
    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]]
    
    
    -----------------------------------------------------------------------
    
    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.
    
    -----------------------------------------------------------------------
    
    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.
    ---------------------------------------------------------------------------
    
        \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]
    ----------------------------------------------------------------------------------------------------------------
                                                  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.
    ----------------------------------------------------------------------------------------------------------------
    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%).
    ---------------------------------------------------------------------------
    
        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\
    ---------------------------------------------------------------------------
    
        \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\
    ---------------------------------------------------------------------------
    
        \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).
    ---------------------------------------------------------------------------
    
    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.
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    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.
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        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]]
    
    ---------------------------------------------------------------------------
    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
    
    
    
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