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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00001 16030901. Fmt 4717 Sfmt 4717(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13040 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

DEPARTMENT OF HOMELAND B. Summary of the Major Provisions of the II. Executive Summary SECURITY Final Rule C. Costs and Benefits A. Purpose of the Regulatory Action 8 CFR Parts 214 and 274a III. Background This final rule affects certain F–1 A. Statutory and Regulatory Authority and nonimmigrant students who seek to [DHS Docket No. ICEB–2015–0002] History obtain an extension of optional practical B. The 2015 NPRM RIN 1653–AA72 C. Basis and Purpose of Regulatory Action training (OPT) based on study at a U.S. IV. Discussion of Comments and Final Rule institution of higher education in a Improving and Expanding Training A. Including a STEM OPT Extension science, technology, engineering or Opportunities for F–1 Nonimmigrant Within the OPT Program mathematics (STEM) field, as well as Students With STEM Degrees and Cap- B. Enforcement, Monitoring, and Oversight certain F–1 nonimmigrant students who Gap Relief for All Eligible F–1 Students C. Qualifying F–1 Nonimmigrants seek so-called Cap-Gap relief. The F–1 D. Qualifying Employers nonimmigrant classification is available AGENCY: Department of Homeland E. STEM OPT Extension Validity Period to individuals seeking temporary Security. F. Training Plan for F–1 Nonimmigrants on admission to the United States as ACTION: Final rule. a STEM OPT Extension G. Application Procedures for STEM OPT students at an established college, SUMMARY: The Department of Homeland Extension university, seminary, conservatory, Security (DHS) is amending its F–1 H. Travel and Employment Authorization academic high school, elementary nonimmigrant student visa regulations Documentation of Certain F–1 school, or other academic institution or on optional practical training (OPT) for Nonimmigrants Changing Status in the in an accredited language training United States or on a STEM OPT 1 certain students with degrees in science, program. To obtain F–1 nonimmigrant Extension classification, the student must be technology, engineering, or mathematics I. Transition Procedures (STEM) from U.S. institutions of higher enrolled in a full course of study at a J. Comments on the Initial Regulatory qualifying institution and have education. Specifically, the final rule Impact Analysis allows such F–1 STEM students who K. Other Comments sufficient funds for self-support during have elected to pursue 12 months of V. Statutory and Regulatory Requirements the entire proposed course of study. OPT in the United States to extend the A. Executive Orders 12866 and 13563: Such course of study must occur at a OPT period by 24 months (STEM OPT Regulatory Planning and Review school authorized by the U.S. B. Regulatory Flexibility Act government to accept international extension). This 24-month extension C. Small Business Regulatory Enforcement effectively replaces the 17-month STEM students. Fairness Act of 1996 OPT is a form of temporary OPT extension previously available to D. Unfunded Mandates Reform Act employment available to F–1 students certain STEM students. The rule also E. Congressional Review Act (except those in English language improves and increases oversight over F. Collection of Information training programs) that directly relates STEM OPT extensions by, among other G. Federalism to a student’s major area of study in the things, requiring the implementation of H. Civil Justice Reform United States. A student can apply to formal training plans by employers, I. Energy Effects J. Environment engage in OPT during his or her adding wage and other protections for K. Indian Tribal Governments academic program (‘‘pre-completion STEM OPT students and U.S. workers, L. Taking of Private Property OPT’’) or after completing the academic and allowing extensions only to M. Protection of Children program (‘‘post-completion OPT’’). A students with degrees from accredited N. Technical Standards student can apply for 12 months of OPT schools. As with the prior 17-month List of Subjects at each education level (e.g., one 12- STEM OPT extension, the rule The Amendments month OPT period at the bachelor’s authorizes STEM OPT extensions only I. Abbreviations level and another 12-month period at for students employed by employers the master’s level). While school is in who participate in E-Verify. The rule CBP U.S. Customs and Border Protection session, the student may work up to 20 also includes the ‘‘Cap-Gap’’ relief first CFR Code of Federal Regulations hours per week pursuant to OPT. introduced in a 2008 DHS regulation for CIP Classification of Instructional Program DHS Department of Homeland Security This final rule provides for an any F–1 student with a timely filed DSO Designated School Official extension of the OPT period for certain H–1B petition and request for change of EAD Employment Authorization Document F–1 students who have earned certain status. FOIA Freedom of Information Act STEM degrees and participate in DATES: This rule is effective May 10, FR Federal Register practical training opportunities with 2016, except the addition of 8 CFR ICE U.S. Immigration and Customs employers that meet certain Enforcement 214.16, which is effective from May 10, requirements. The Department of 2016, through May 10, 2019. ID Identification IFR Interim Final Rule Homeland Security (DHS) first FOR FURTHER INFORMATION CONTACT: INA Immigration and Nationality Act introduced an extension of OPT for Katherine Westerlund, Policy Chief NCES National Center for Education STEM graduates in a 2008 interim final (Acting), Student and Exchange Visitor Statistics rule (2008 IFR). See 73 FR 18944 (Apr. Program, U.S. Immigration and Customs NPRM Notice of Proposed Rulemaking 8, 2008). Under the 2008 IFR, an F–1 Enforcement, 500 12th Street SW., OPT Optional Practical Training student with a STEM degree from a U.S. Washington, DC 20536; telephone (703) RIA Regulatory Impact Analysis institution of higher education could 603–3400; email [email protected]. SEVP Student and Exchange Visitor apply for an additional 17 months of Program SUPPLEMENTARY INFORMATION: SEVIS Student and Exchange Visitor 1 For purposes of 8 CFR 214.2(f), a ‘‘college or Table of Contents Information System STEM Science, Technology, Engineering, or university’’ is an institution of higher learning that awards recognized bachelor’s, master’s, doctoral or I. Abbreviations Mathematics professional degrees. See 8 CFR 214.3(a)(2)(A). A II. Executive Summary U.S.C. United States Code career or technical institution may therefore be A. Summary of Purpose of the Regulatory USCIS U.S. Citizenship and Immigration categorized as a ‘‘college or university’’ if it awards Action Services such degrees.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00002 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13041

OPT (17-Month STEM OPT extension), extension on the student’s most recent the employer. Fourth, both the student provided that the employer from which academic degree, or may (subject to a and the employer are obligated to report the student sought employment was number of requirements described in to the DSO material changes to, or enrolled in and remained in good more detail below) base the extension material deviations from, the student’s standing in the E-Verify electronic on a STEM degree that the student formal training plan. employment eligibility verification earned earlier in his or her academic Finally, this rule includes a number of program (E-Verify), as determined by career in the United States. Under this specific obligations for STEM OPT U.S. Citizenship and Immigration rule, a student may be eligible for up to employers. These obligations are Services (USCIS). As discussed in two, separate STEM OPT extensions intended to ensure the integrity of the further detail below, on August 12, over the course of his or her academic program and provide safeguards for U.S. 2015, the U.S. District Court for the career, upon completing two qualifying workers in STEM fields. Among other District of Columbia ordered the vacatur STEM degrees at different educational things, the employer must be enrolled in of the 2008 IFR on procedural grounds levels. and remain in good standing with E- and remanded the issue to DHS. The This rule includes a number of Verify; assist with the aforementioned court stayed the vacatur until February measures intended to better ensure the reporting and training plan 12, 2016 to give DHS the opportunity to educational benefit, integrity, and requirements; and attest that (1) it has issue a new rule related to STEM OPT security of the STEM OPT extension. sufficient resources and trained extensions through notice-and-comment For instance, the rule requires each personnel available to provide rulemaking. STEM OPT student to prepare and appropriate training in connection with On October 19, 2015, DHS published execute with their prospective employer the specified opportunity; (2) the a notice of proposed rulemaking a formal training plan that identifies student on a STEM OPT extension will (NPRM) in the Federal Register to learning objectives and a plan for not replace a full- or part-time, reinstate the STEM OPT extension, with achieving those objectives. The STEM temporary or permanent U.S. worker; changes intended to enhance the OPT student and his or her employer and (3) the opportunity helps the educational benefit afforded by the must work together to finalize that plan. student attain his or her training extension and to increase program The rule also prohibits students from objectives. oversight, including safeguards to basing a STEM OPT extension on a We describe each of these provisions protect U.S. workers. See 80 FR 63376. degree from an unaccredited in more detail below. educational institution. Moreover, to On January 23, 2016, the Court further 2. Comparison to the 2008 IFR stayed its vacatur until May 10, 2016, to ensure compliance with program As noted above, this rule contains a provide DHS additional time to requirements, the rule provides for DHS number of changes in comparison to the complete the rulemaking following site visits to employer locations in 2008 IFR, while retaining other review of public comments received which STEM OPT students are provisions of the 2008 IFR. Changes during the comment period and to allow employed. Although DHS will generally made by this rule in comparison to the the Department to publish the rule with give notice of such site visits, DHS may conduct an unannounced site visit if it 2008 IFR include: a 60-day delayed effective date to • Lengthened STEM OPT Extension provide sufficient time for efficient is triggered by a complaint or other evidence of noncompliance with the Period. The rule increases the OPT transition to the new rule’s extension period for STEM OPT requirements. regulations. The rule also includes a number of students from the 2008 IFR’s 17 months B. Summary of the Major Provisions of requirements intended to help DHS to 24 months. The final rule also makes the Final Rule track STEM OPT students and further F–1 students who subsequently enroll enhance the integrity of the STEM OPT in a new academic program and earn 1. Summary of Final Rule extension. Most prominent among these another qualifying STEM degree at a This rule finalizes the NPRM, with are reporting requirements, which the higher educational level eligible for one certain changes made following review rule imposes primarily upon students additional 24-month STEM OPT and consideration of the public and designated school officials (DSOs). extension. comments received by DHS. Under this The rule includes four main reporting • STEM Definition and CIP Categories rule, a qualifying F–1 student with a requirements, as follows. First, the rule for STEM OPT Extension. The rule STEM degree who has been granted 12 imposes a six-month validation defines which fields of study (more months of practical training pursuant to requirement, under which a STEM OPT specifically, which Department of the general OPT program may apply to student and his or her school must work Education Classification of Instructional DHS for a 24-month extension of his or together to confirm the validity of Program (CIP) categories) may serve as her period of practical training (STEM certain biographical, residential, and the basis for a STEM OPT extension. OPT extension). employment information concerning the The rule also sets forth a process for The core purpose of the STEM OPT student, including the student’s legal public notification in the Federal extension is to allow participating name, the student’s address, the Register when DHS updates the list of students to supplement their academic employer’s name and address, and eligible STEM fields on the Student and knowledge with valuable practical current employment status. Second, the Exchange Visitor Program’s (SEVP’s) STEM experience. Accordingly, as is the rule imposes an annual self-evaluation Web site. case with practical training generally, a requirement, under which the student • Training Plan for STEM OPT student’s practical training pursuant to must report to the DSO on his or her Students. To improve the educational the STEM OPT extension must be progress with the practical training. The benefit of the STEM OPT extension, the directly related to the student’s major student’s employer must sign the self- rule requires employers to implement area of study. The student’s STEM evaluation prior to its submission to the formal training programs to augment degree must be awarded by an DSO. Third, the rule requires that the students’ academic learning through accredited U.S. college or university and student and employer report changes in practical experience. This requirement be in a field recognized as a STEM field employment status, including the is intended to equip students with a by DHS. The student may base the student’s termination or departure from more comprehensive understanding of

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00003 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13042 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

their selected area of study and broader period of post-completion OPT but with the STEM OPT extension functionality within that field. allows an additional 60 days (for a total regulations triggers the visit, in which • Previously Obtained STEM Degrees. of 150 days) for a student who obtains case DHS may conduct the visit without The rule permits an F–1 student a 24-month STEM OPT extension. notice. participating in a 12-month period of The rule retains other provisions of • Focus on Training. DHS has post-completion OPT based on a non- the 2008 IFR, as follows: modified the proposed rule’s Mentoring STEM degree to use a prior eligible • E-Verify and Reporting and Training Plan to increase the focus STEM degree from a U.S. institution of Requirements for STEM OPT Employers. on training. The information collection higher education as a basis to apply for The rule requires STEM OPT employers instrument for this plan is now titled a STEM OPT extension, as long as both to be enrolled in and remain in good Form I–983, Training Plan for STEM degrees were received from currently standing with E-Verify, as determined OPT Students. accredited educational institutions. The by USCIS, and to report changes in the • Existing Employer Training practical training opportunity must be STEM OPT student’s employment to the Programs. This rule streamlines and directly related to the previously DSO within five business days. clarifies the regulatory text and Training obtained STEM degree. • Reporting Requirements for STEM Plan for STEM OPT Students to clarify • Safeguards for U.S. Workers in OPT Students. The rule requires STEM that employers may use existing training Related Fields. To guard against adverse OPT students to report to their DSOs programs to satisfy certain regulatory impacts on U.S. workers, the rule any name or address changes, as well as requirements for evaluating the progress requires terms and conditions of a any changes to their employers’ names of STEM OPT students. STEM practical training opportunity or addresses. Students also must verify • Employer Attestation. The rule (including duties, hours, and the accuracy of this reporting revises the employer attestation to compensation) to be commensurate with information periodically. require that the employer attest that the those applicable to similarly situated • Cap-Gap Extension for F–1 student will not replace a full- or part- U.S. workers. As part of completing the Students with Timely Filed H–1B time, temporary or permanent U.S. Form I–983, Training Plan for STEM Petitions and Requests for Change of worker. OPT Students, an employer must attest Status. With a minor revision to • Evaluation of Student Progress. The that: (1) It has sufficient resources and improve readability, the rule includes rule revises the evaluation requirement trained personnel available to provide the 2008 IFR’s Cap-Gap extension to require that the student and an appropriate training in connection with provision, under which DHS appropriate individual in the the specified opportunity; (2) the temporarily extends an F–1 student’s employer’s organization sign the student will not replace a full- or part- duration of status and any current evaluation on an annual basis, with a time, temporary or permanent U.S. employment authorization if the student mid-point evaluation during the first 12- worker; and (3) the opportunity will is the beneficiary of a timely filed H–1B month interval and a final evaluation help the student attain his or her petition and change-of-status request completed prior to the conclusion of the training objectives. pending with or approved by USCIS. STEM OPT extension. • School Accreditation, Employer The Cap-Gap extension extends the OPT DHS also has clarified its Site Visits, and Employer Reporting. To period until the beginning of the new interpretation of the rule in a number of improve the integrity of the STEM OPT fiscal year (i.e., October 1 of the fiscal ways, as explained more fully below. extension, the rule: (1) Generally limits year for which the H–1B status is being C. Costs and Benefits eligibility for such extensions to requested). students with degrees from schools The anticipated costs of compliance accredited by an accrediting agency 3. Summary of Changes From the Notice with the rule, as well as the benefits, are recognized by the Department of of Proposed Rulemaking discussed at length in the section below, Education; (2) clarifies DHS discretion Following careful consideration of entitled ‘‘Statutory and Regulatory to conduct employer site visits at public comments received, DHS also Requirements—Executive Orders 12866 worksites to verify whether employers has made several modifications to the and 13563.’’ A combined Regulatory are meeting program requirements, regulatory text proposed in the NPRM. Impact Analysis and a Final Regulatory including that they possess and Those changes include the following: Flexibility Analysis are available in the maintain the ability and resources to • Time of Accreditation. For a STEM docket for this rulemaking. A summary provide structured and guided work- OPT extension based on a previously of the analysis follows. based learning experiences; and (3) obtained STEM degree, the student must DHS estimates that the costs imposed institutes new employer reporting have obtained that degree from an by the implementation of this rule will requirements. educational institution that is accredited be approximately $737.6 million over • Compliance Requirements and at the time of the student’s application the 10-year analysis time period, Unemployment Limitation. In addition for the extension. discounted at 3 percent, or $588.5 to reinstating the 2008 IFR’s reporting • SEVP Certification Required for million, discounted at 7 percent. This and compliance requirements, the rule Prior Degrees. For a STEM OPT amounts to $86.5 million per year when revises the number of days an F–1 extension based on a previously annualized at a 3 percent discount rate, student may remain unemployed during obtained STEM degree, the degree also or $83.8 million per year when the practical training period. The must have been issued by an annualized at a 7 percent discount rate. program in effect before this final rule educational institution that is SEVP- The Summary Table at the end of this allowed a student to be unemployed up certified at the time of application for section presents the cost estimates in to 90 days during his or her initial the extension. Overseas campuses of more detail. period of post-completion OPT, and up U.S. educational institutions are not With respect to benefits, making the to an additional 30 days (for a total of eligible for SEVP certification. STEM OPT extension available to 120 days) for a student who received a • Site Visit Notifications. DHS will additional students and lengthening the 17-month STEM OPT extension. This provide notice to the employer 48 hours 17-month extension to 24 months will rule retains the 90-day maximum period before any site visit unless a complaint enhance certain students’ ability to of unemployment during the initial or other evidence of noncompliance achieve the objectives of their courses of

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00004 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13043

study by allowing them to gain valuable the nation’s economic, scientific, and DSOs; preparing (with their employers) knowledge and skills through on-the-job technological competitiveness. the Training Plan for STEM OPT training that may be unavailable in their Furthermore, strengthening the STEM Students required by this rule; and home countries. The changes will also OPT extension by implementing periodically submitting updates to benefit the U.S. educational system, requirements for training, tracking employers and DSOs. DSOs will incur U.S. employers, and the broader U.S. objectives, reporting on program costs for reviewing information and economy. The rule will benefit the U.S. compliance, and accreditation of forms submitted by students, inputting educational system by helping to ensure participating schools will further required information into the Student that the nation’s colleges and prevent abuse of the limited on-the-job and Exchange Visitor Information universities remain globally competitive training opportunities provided by OPT System (SEVIS), and complying with in attracting international students in in STEM fields. These and other other oversight requirements related to STEM fields. U.S. employers will elements of the rule also will improve prospective and participating STEM program oversight, strengthen the OPT students. Employers of STEM OPT benefit from the increased ability to rely requirements for program participation, students will incur burdens for on skilled U.S.-educated STEM OPT and better ensure that U.S. workers are preparing the Training Plan with students, as well as their knowledge of protected. students, confirming students’ markets in their home countries. The The Summary Table below presents a evaluations, enrolling in (if not nation also will benefit from the summary of the benefits and costs of the previously enrolled) and using E-Verify increased retention of such students in rule. The costs are discounted at 7 to verify employment eligibility for all the United States, including through percent. Students will incur costs for new hires, and complying with increased research, innovation, and completing application forms and additional requirements related to E- other forms of productivity that enhance paying application fees; reporting to 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 Discount Rate ... $79.8 $4.0 $83.8 10-Year Cost Annualized at 3 Percent Discount Rate ... $82.3 $4.2 $86.5

Qualitative Costs ...... • Cost to students and schools resulting from accreditation requirement; • Cost to employers from the requirement to provide STEM OPT students commensu- rate compensation to similarly situated U.S. workers; and • Decreased practical training opportunities for students no longer eligible for the pro- gram 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 in the final rule and include new data major changes to the RIA from the comments, DHS revised the regulatory that has become available since the NPRM are summarized in the table impact analysis (RIA) published with publication of the NPRM, such as below. the NPRM to reflect the changes made updated compensation rates. DHS’s

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 CIP 10% 5% ¥5% • The final rule’s changes to the CIP list are List Eligibility as a percent of New STEM not expected to result in the same expan- OPT Extension Students. sion of eligibility as DHS anticipated in the proposed rule. Number of Transitional Students ...... 18,210 17,610 ¥600 • Revised the estimate of transitional stu- dents based on the effective date of final rule.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00005 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13044 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

TABLE 1—CHANGES FROM INITIAL RIA TO FINAL RIA—Continued

NPRM and final rule comparison Variables Description of changes NPRM Final rule Difference

Wages

STEM Students’ Weighted Average Wage $23.81 $26.06 $2.25 • New FLC Data Center Online Wage Li- Rate (unloaded). brary 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 com- ments. 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 Updating Infor- $12.94 $0 $12.94 • The student Reporting Requirements in mation Reports. the Final Rule do not represent a change from the baseline.

E-Verify Requirements for STEM OPT Extension Employers

Total Enrolled Employers Who Would Dis- 70,025 8,753 ¥61,272 • Updated based on further research. continue E-Verify without Final Rule over 10 years.

Total 10-year Cost (Undiscounted) ...... $759.3M $886.1M $126.8M

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00006 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13045

Act of 1952, as amended (INA), Sec. 1. OPT Background certified by SEVP, and who has 103, 8 U.S.C. 1103. Section A student in F–1 status may remain otherwise maintained his or her status, 101(a)(15)(F)(i) of the INA establishes in the United States for the duration of to apply for practical training to work the F–1 nonimmigrant classification for his or her education if otherwise for a U.S. employer in a job directly individuals who wish to come to the meeting the requirements for the related to his or her major area of study. United States temporarily to enroll in a maintenance of status. 8 CFR 8 CFR 214.2(f)(10). full course of study at an academic or 214.2(f)(5)(i). Once an F–1 student has An F–1 student may seek employment language training school certified by completed his or her academic program through OPT either during his or her U.S. Immigration and Customs and any subsequent period of OPT, the academic program (pre-completion Enforcement’s (ICE’s) SEVP. 8 U.S.C. student must generally leave the United OPT) or immediately after graduation 1101(a)(15)(F)(i). The INA provides the States unless he or she enrolls in (post-completion OPT). The student Secretary with broad authority to another academic program, either at the remains in F–1 nonimmigrant status determine the time and conditions same school or at another SEVP- throughout the OPT period. Thus, an F– under which nonimmigrants, including certified school; changes to a different 1 student in post-completion OPT does F–1 students, may be admitted to the nonimmigrant status; or otherwise not have to leave the United States United States. See INA Sec. 214(a)(1), 8 legally extends his or her period of within 60 days after graduation, but U.S.C. 1184(a)(1). The Secretary also has authorized stay in the United States. As instead has authorization to remain for broad authority to determine which noted, DHS regulations have long the entire post-completion OPT period. individuals are authorized for defined an F–1 student’s duration of 8 CFR 214.2(f)(5)(i). This initial post- employment in the United States. See, status to include the student’s practical completion OPT period (i.e., a period of e.g., INA Sec. 274A(h)(3), 8 U.S.C. training. See, e.g., 48 FR 14575, 14583 practical training immediately following 1324a(h)(3). (Apr. 5, 1983).7 Additionally, an F–1 completion of an academic program) Federal agencies dealing with student is allowed a 60-day ‘‘grace can be up to 12 months, except in immigration have long interpreted Sec. period’’ after the completion of the certain circumstances involving 101(a)(15)(F)(i) of the INA and related academic program or OPT to prepare for students who engaged in either pre- authorities to encompass on-the-job departure from the United States. 8 CFR completion OPT or curricular practical training that supplements classroom 214.2(f)(5)(iv). training (CPT).8 training. See, e.g., 12 FR 5355, 5357 Unless an F–1 student meets certain 2. Regulatory History (Aug. 7, 1947) (authorizing employment limited exceptions, he or she may not be for practical training under certain employed in the United States during On April 8, 2008, DHS published an conditions, pursuant to statutory the term of his or her F–1 status. DHS interim final rule in the Federal authority substantially similar to current permits an F–1 student who has been Register (73 FR 18944) that, in part, INA Sec. 101(a)(15)(F)(i)); 38 FR 35425, enrolled on a full-time basis for at least extended the maximum period of OPT 35426 (Dec. 28, 1973) (also authorizing, one full academic year in a college, from 12 to 29 months (through a 17- pursuant to the INA, employment for university, conservatory, or seminary month ‘‘STEM OPT extension’’) for an practical training under certain F–1 student who obtained a degree in a 5 conditions). the United States, using electronic reporting designated STEM field from a U.S. ICE manages and oversees significant technology where practicable. Consistent with this institution of higher education and who elements of the F–1 student process, statutory authority, DHS manages these programs pursuant to Homeland Security Presidential was engaged in practical training with including the certification of schools an employer that enrolled in and and institutions in the United States Directive—2 (HSPD—2), Combating Terrorism Through Immigration Policies (Oct. 29, 2001), as remained in good standing with E- that enroll F–1 students. In overseeing amended, http://www.gpo.gov/fdsys/pkg/CPRT- Verify, as determined by USCIS. As a these institutions, ICE uses SEVIS to 110HPRT39618/pdf/CPRT-110HPRT39618.pdf); result of that rule, F–1 students granted track and monitor international students and Section 502 of the Enhanced Border Security STEM OPT extensions were required to and communicate with the schools that and Visa Entry Reform Act of 2002, Pub. L. 107– 173, 116 Stat. 543, 563 (May 14, 2002). HSPD–2 report to their DSOs any changes in enroll them while they are in the United requires the Secretary of Homeland Security to their names or addresses, as well as any States and participating in educational conduct periodic, ongoing reviews of institutions changes in their employer’s information opportunities. Additional statutory and certified to accept F nonimmigrants, and to include (including name or address), and other authority requires and supports checks for compliance with recordkeeping and reporting requirements. See Weekly Comp. Pres. periodically validate the accuracy of this tracking and monitoring.6 Docs., 37 WCPD 1570, http://www.gpo.gov/fdsys/ this information. The rule further granule/WCPD-2001-11-05/WCPD-2001-11-05- required employers of such students to 5 During a brief period following the Immigration Pg1570/content-detail.html. Section 502 of the Act of 1990, Congress expanded employment Enhanced Border Security and Visa Entry Reform report to the relevant DSO within two authorization for foreign students (referred to Act of 2002 directs the Secretary to review the throughout this preamble as ‘‘international compliance with recordkeeping and reporting 8 CPT provides a specially-designed program students’’) by allowing for a three-year pilot requirements under 8 U.S.C. 1101(a)(15)(F) and through which students can participate in an program in which students could be employed off- 1372 of all schools approved for attendance by F internship, alternative study, cooperative campus in positions unrelated to the student’s field students within two years of enactment, and every education, or similar programs. 52 FR 13223 (Apr. of study. Pub. L. 101–649, Sec. 221(a), 104 Stat. two years thereafter. Moreover, the programs 22, 1987). Defined to also include practicums, CPT 4978, 5027 (Nov. 29, 1990). In general, however, discussed in this rule, as is the case with all DHS allows sponsoring employers to train F–1 students practical training has historically been limited to programs, are carried out in keeping with DHS’s as part of the students’ established curriculum the student’s field of study. primary mission, which includes the responsibility within their schools. 8 CFR 214.2(f)(10)(i). CPT 6 DHS derives its authority to manage these to ‘‘ensure that the overall economic security of the must relate to and be integral to a student’s program programs from several sources, including, in United States is not diminished by the efforts, of study. Unlike OPT and other training or addition to the authorities cited above, section 641 activities, and programs aimed at securing the employment, however, CPT can be full-time even of Illegal Immigration Reform and Immigrant homeland.’’ 6 U.S.C. 111(b)(1)(F). while a student is attending school that is in Responsibility Act of 1996, Pub. L. 104–208, 110 7 See Washington Alliance of Tech. Workers v. session. Schools have oversight of CPT through Stat. 3009–546, 3009–704 (Sep. 30, 1996) (codified U.S. Dep’t of Homeland Security, No. 1:14-cv- their DSOs, who are responsible for authorizing as amended at 8 U.S.C. 1372), which authorizes the 00529, slip op. at 25–26 (D.D.C. Aug. 12, 2015) CPT that is directly related to the student’s major creation of a program to collect current and ongoing (finding that DHS’s interpretation permitting area of study and reporting certain information, information provided by schools and exchange ‘‘employment for training purposes without including the employer and location, the start and visitor programs regarding F and other requiring school enrollment’’ is ‘‘‘longstanding’ and end dates, and whether the training is full-time or nonimmigrants during the course of their stays in entitled to [judicial] deference’’). part time. 8 CFR 214.2(f)(10)(i)(B).

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00007 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13046 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

business days if a student was reasonable interpretation of the INA,9 opportunities that would otherwise be terminated from or otherwise left the court also held that DHS violated available to them. the notice and comment provisions of employment prior to the end of the B. The 2015 NPRM authorized period of OPT. The rule the Administrative Procedure Act allowed an F–1 student to apply for (APA), 5 U.S.C. 553, by promulgating After the court’s ruling, DHS acted post-completion OPT within the 60-day the 2008 IFR without advance notice quickly to address the imminent vacatur grace period at the conclusion of his or and opportunity for public comment. In of the 2008 IFR and the significant her academic program. The rule also its order, the court invalidated the 2008 uncertainty surrounding the status of limited the total period in which IFR as procedurally deficient, and thousands of students in the United students on initial post-completion OPT remanded the issue to DHS. States. As of September 16, 2015, over 34,000 students were in the United could be unemployed to 90 days. Although the court vacated the 2008 States on a STEM OPT extension. In Students granted 17-month STEM OPT IFR, the court stayed the vacatur until addition, hundreds of thousands of extensions were provided an additional February 12, 2016, to provide time for DHS to correct the procedural international students, most of whom 30 days in which they could be are in F–1 status, already have chosen unemployed, for an aggregate period of deficiency through notice-and-comment rulemaking. Id. at *37.10 The court to enroll in U.S. educational institutions 120 days. specifically explained that the stay was and are currently pursuing courses of The 2008 IFR also addressed the so- necessary to avoid ‘‘substantial hardship study in fields that may provide called Cap-Gap problem, which results for foreign students and a major labor eligibility for this program. Some of when an F–1 student’s F–1 status and disruption for the technology sector’’ those students may have considered the OPT-based employment authorization and that immediate vacatur of the STEM opportunities offered by the STEM OPT expires before the start date of an OPT extension would be ‘‘seriously extension when deciding whether to approved H–1B petition and change-of- disruptive.’’ Id. at *36. On January 23, pursue their degree in the United States. status request filed on his or her behalf 2016, the Court further stayed its DHS therefore acted swiftly to mitigate (‘‘H–1B change-of-status petition’’). vacatur by 90 days until May 10, 2016. the uncertainty surrounding the 2008 Specifically, F–1 students on initial Washington Alliance of Tech. Workers IFR. Prompt action is particularly post-completion OPT frequently v. U.S. Dep’t of Homeland Security, No. appropriate with respect to those complete their period of authorized 1:14-cv-00529, (D.D.C. Jan. 23, 2016) students who have already committed to practical training in June or July of the (slip op.). The court further stayed the study in the United States, in part based year following graduation. Before the vacatur to provide DHS an additional 30 on the possibility of furthering their 2008 IFR, if such a student was a days to complete the rulemaking and to education through an extended period beneficiary of an H–1B petition that was allow the Department to publish the of practical training in the world’s 11 pending with or approved by USCIS and rule with a 60-day delayed effective leading STEM economy. Accordingly, on October 19, 2015, requested a change of status to H–1B date. Id. DHS published an NPRM in the Federal classification commencing in the Litigation in this matter is ongoing, as the plaintiff has appealed a portion of Register, proposing to reinstate the following fiscal year (i.e., beginning on STEM OPT extension along with October 1), the student would be unable the court’s August 12, 2015, decision. Thus the final disposition of the case changes intended to improve the to obtain H–1B status before his or her integrity and academic benefit of the OPT period expired. Such students were remains to be determined. Nevertheless, it is clear that DHS must issue a final extension and to better protect U.S. often required to leave the United States workers.12 80 FR 63376.13 During the for a few months until they were able rule that will take effect before the court’s stay expires on May 10, 2016, or public comment period, approximately to obtain their H–1B status on October 50,500 comments were submitted on the 1. The 2008 IFR addressed this problem a significant number of students will be unable to pursue valuable training through a Cap-Gap provision that briefly 11 The National Science Foundation reports that extended the F–1 student’s duration of the United States performs more science and 9 status and employment authorization to With respect to DHS’s interpretation of the F– engineering Research and Development (R&D) than 1 student visa provisions in the INA, the court any other nation, accounting for just under 30% of enable the student to remain in the found ample support for DHS’s longstanding the global total. See Science and Engineering United States until he or she could practice of ‘‘permit[ting F–1 student] employment Indicators 2014 (NSF) at Chapter 4 (International change to H–1B status. for training purposes without requiring ongoing Comparisons), at 4–17, available at http:// school enrollment.’’ Washington Alliance, No. 1:14- www.nsf.gov/statistics/seind14/index.cfm/chapter- DHS received over 900 comments in cv-00529, slip op. at 26–27. The court recognized 4. According to NSF, the United States expends response to the 2008 IFR. Public the Secretary’s broad authority under the INA ‘‘to $429 billion of the estimated $1.435 trillion in comments received on the 2008 IFR and regulate the terms and conditions of a global science and engineering R&D (p. 4–17), and nonimmigrant’s stay, including its duration.’’ Id. at business, government, higher education, and non- other records may be reviewed at the *29 (citing 8 U.S.C. 1103(a), 1184(a)(1)). The court profits in the United States expend more than docket for that rulemaking, No. ICEB– also recognized the Secretary’s authority to consider double that of any other country (Table 4–5). 2008–0002, available at the potential economic contributions and labor 12 These proposed changes were consistent with market impacts that may result from particular www.regulations.gov. the direction provided in the Secretary of regulatory decisions. Id. (citing 6 U.S.C. Homeland Security’s November 20, 2014 Washington Alliance Litigation 111(b)(1)(F)). memorandum entitled, ‘‘Policies Supporting U.S. 10 In an earlier preliminary ruling in the case High Skilled Businesses and Workers.’’ DHS Regarding the 2008 IFR regarding plaintiff’s challenge to DHS’s general OPT recognized the nation’s need to evaluate, and STEM OPT extension programs, the court held strengthen, and improve practical training as part On August 12, 2015, the U.S. District that plaintiff did not have standing to challenge the of an overall strategy to enhance our nation’s Court for the District of Columbia issued general OPT program on behalf of its members economic, scientific, and technological an order in the case of Washington because it had not identified a member of its competitiveness. Highly skilled persons educated in association who suffered any harm from the general the United States contribute significantly to the U.S. Alliance of Tech. Workers v. U.S. Dep’t OPT program. See Washington Alliance of Tech. economy, including through advances in of Homeland Security, — F. Supp. 3d Workers v. U.S. Dep’t of Homeland Security, 74 F. entrepreneurial and research and development —, 2015 WL 9810109, (D.D.C. Aug. 12, Supp. 3d 247, 252 & n.3 (D.D.C. 2014). The court endeavors, which correlate highly with overall 2015) (slip op.). Although the court held held in the alternative that the challenge to the economic growth and job creation. general OPT program was barred by the applicable 13 DHS hereby incorporates all background that the 2008 IFR rested upon a statute of limitations. material included in the NPRM in this final rule.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00008 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13047

NPRM and related forms.14 Comments year.16 This contribution included colleges and universities, including were submitted by a range of entities tuition ($19.8 billion) and living beneficial economic and cultural and individuals, including U.S. and expenses for self and family ($16.7 impacts. A study by Duke University in international students, U.S. workers, billion), after adjusting for U.S. financial 2013 analyzing 5,676 alumni surveys schools and universities, professional support ($9.7 billion).17 Public colleges showed that ‘‘substantial international associations, labor organizations, and universities particularly benefit interaction was positively correlated advocacy groups, businesses, two from the payment of tuition by with U.S. students’ perceived skill members of Congress, and other international students, especially in development in a wide range of areas interested persons. DHS thanks the comparison to the tuition paid by in- across three cohorts.’’23 Current public for its helpful input and state students.18 research also suggests that international engagement during the public comment International students also increase students contribute to the overall period.15 the benefits of academic exchange, economy by building global connections This final rule builds upon the NPRM while reinforcing ties with other between their hometowns and U.S. host countries and fostering increased 24 and the public comments received. DHS cities. Evidence links skilled understanding of American society.19 intends for this rule to further migration to transnational business International students, for example, strengthen the integrity and educational creation, trade, and direct investment ‘‘enrich U.S. universities and benefit of STEM OPT extensions, as between the United States and a communities with unique perspectives 25 well as better protect U.S. workers. migrant’s country of origin. and experiences that expand the International STEM students C. Basis and Purpose of Regulatory horizons of American students and contribute to the United States in all the Action [make] U.S. institutions more ways mentioned above. They also competitive in the global economy.’’ 20 contribute more specifically to a number In finalizing this rule, DHS recognizes At the same time, ‘‘the international of advanced and innovative fields that the substantial economic, scientific, community in American colleges and are critical to national prosperity and technological, and cultural benefits universities has implications regarding security. By conducting scientific provided by the F–1 nonimmigrant global relationships, whether [those are] research, developing new technologies, program generally, and STEM OPT between nation-states, or global advancing existing technologies, and extensions in particular. business and economic creating new products and industries, 1. Benefits of International Students in communities.’’ 21 International for example, STEM workers diversify the United States education and exchange at the post- our nation’s economy and drive secondary level in the United States economic growth while also producing International students have builds relationships that ‘‘promote increased employment opportunities historically made significant cultural understanding and dialogue’’ and higher wages for all U.S. workers.26 contributions to the United States, both and bring a global dimension to higher through the payment of tuition and education through the ‘‘diversity in 23 Jiali Luo and David Jamieson-Drake, other expenditures in the U.S. economy, culture, politics, religions, ethnicity, ‘‘Examining the Educational Benefits of Interacting with International Students’’ at 96 (June 2013), as well as by significantly enhancing and worldview’’ brought by available at https://jistudents.files.wordpress.com/ 22 academic discourse and cultural international students. 2013/05/2013-volume-3-number-3-journal-of- exchange on campuses throughout the Accordingly, international students international-students-published-in-june-1– United States. In addition to these provide substantial benefits to their U.S. 2013.pdf. The authors noted that U.S. educational institutions play an important role in ensuring U.S. general benefits, STEM students further students benefit as much as possible from this 16 contribute through research, innovation, NAFSA: Association of International interaction. Educators, ‘‘The Economic Benefits of International and the provision of knowledge and 24 Brookings Institution, ‘‘The Geography of Students: Economic Analysis for Academic Year Foreign Students in U.S. Higher Education: Origins skills that help maintain and grow 2013–2014,’’ available at http://www.nafsa.org/_/ _ and Destinations’’ (August 29, 2014), available at increasingly important sectors of the File/ /eis2014/USA.pdf; see also NAFSA, http://www.brookings.edu/research/interactives/ U.S. economy. International Student Economic Value Tool, 2014/geography-of-foreign-students#/M10420. available at http://www.nafsa.org/economicvalue. 25 Sonia Plaza, ‘‘Diaspora resources and policies,’’ International students, for example, 17 Id. in International Handbook on the Economics of 18 regularly contribute a significant Washington Post, ‘‘College Group Targets Migration, 505–529 (Amelie F. Constant and Klaus amount of money into the U.S. Incentive Payments for International Student F. Zimmermann, eds., 2013). Recruiters’’ (June 2, 2011), available at http:// economy. According to statistics 26 See Michael Greenstone and Adam Looney, ‘‘A compiled by NAFSA: Association of www.washingtonpost.com/local/education/college- Dozen Economic Facts About Innovation’’ 2–3, group-targets-incentive-payments-for-international- ∼ International Educators (NAFSA), _ available at http://www.brookings.edu/ /media/ student-recruiters/2011/05/31/AGvl5aHH research/files/papers/2011/8/innovation- international students made a net story.html. greenstone-looney/08_innovation_greenstone_ 19 contribution of $26.8 billion to the U.S. See The White House, National Security looney.pdf [hereinafter Greenstone and Looney]; Strategy 29 (May 2010), available at https:// Bureau of Labor Statistics 2014 data show that economy in the 2013–2014 academic _ www.whitehouse.gov/sites/default/files/rss viewer/ employment in occupations related to STEM has _ _ national security strategy.pdf. been projected to grow more than nine million, or 14 Comments can be viewed in the online docket 20 U.S. Department of State, ‘‘Why 13 percent, during the period between 2012 and for this rulemaking at http://www.regulations.gov. Internationalize,’’ available at https:// 2022, 2 percent faster than the rate of growth Enter ‘‘ICEB–2015–0002’’ into the search bar to find educationusa.state.gov/us-higher-education- projected for all occupations. Bureau of Labor the docket. professionals/why-internationalize. Statistics, Occupational Outlook Quarterly, Spring 15 One commenter requested a public meeting on 21 Pamela Leong, ‘‘Coming to America: Assessing 2014, ‘‘STEM 101: Intro to Tomorrow’s Jobs’’ 6, the NPRM, ‘‘[g]iven the major impact that the rules the Patterns of Acculturation, Friendship available at http://www.stemedcoalition.org/wp- will have on the educational and labor markets, and Formation, and the Academic Experiences of content/uploads/2010/05/BLS-STEM-Jobs-report- the lack of attention in the rule to the adverse International Students at a U.S. College,’’ Journal of spring-2014.pdf. See also Australian Government, impacts the program’s insufficient regulations and International Students Vol. 5 (4): 459–474 (2015) at Strategic Review of the Student Visa Program 2011 worker protections can have on U.S. workers and p. 459. Report, ix, 1 (June 30, 2011), available at http:// students.’’ DHS has determined that a public 22 Hugo Garcia and Maria de Lourdes Villareal, www.border.gov.au/ReportsandPublications/ meeting would not be in the public interest, in light ‘‘The ‘‘Redirecting’’ of International Students: Documents/reviews-and-inquiries/2011-knight- of the impending vacatur date and the extensive American Higher Education Policy Hindrances and review.pdf#search=knight%20review (concluding discussion of these issues in the NPRM, the public Implications,’’ Journal of International Students that the economic benefit of international master’s comments, and this final rule. Vol. 4 (2): 126–136 (2014) at p. 132. Continued

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00009 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13048 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

Economic research supports the premise is crucial for economic growth, which is April, 2008, Canada modified its Post- that scientists, technology professionals, vital to continued funding for defense Graduation Work Permit Program to engineers, and mathematicians (STEM and security.34 allow international students who have workers) are fundamental components graduated from a recognized Canadian 2. Increased Competition for in scientific innovation and post-secondary institution to stay and International Students technological adoption, and critical gain valuable post-graduate work drivers of productivity growth in the DHS recognizes that the United States experience for a period equal to the United States.27 For example, research has long been a global leader in length of the student’s study program, has shown that international students international education. The number of up to a maximum of three years, with who earn a degree and remain in the international students affiliated with no restrictions on type of United States are more likely than U.S. colleges and universities grew by employment.39 This change resulted in native-born workers to engage in 72 percent between 1999 and 2013 to a a steady increase between 2003 and activities, such as patenting and the total of 886,052.35 However, although 2007 in the number of post-graduation commercialization of patents, that the overall number of international work permits issued to international increase U.S. labor productivity.28 students increased over that period, the students, followed by a sharp increase Similarly, other research has found that nation’s share of such students of 64 percent from 2007 to 2008.40 By a 1 percentage point increase in decreased. In 2001, the United States 2014, the number of international immigrant college graduates’ population received 28 percent of international students in the program was more than share increases patents per capita by 9 students; by 2011 that share had double its 2008 total.41 In addition, to 18 percent.29 Research also has decreased to 19 percent.36 Countries Canada aims to double the number of shown that foreign-born workers are such as Canada, the United Kingdom, international students in the country particularly innovative, especially in New Zealand, Australia, Malaysia, from 211,949 in 2014 to 450,000 by research and development, and that Taiwan, and China are actively 2022.42 they have positive spillover effects on instituting new strategies to attract In light of the United States’ native-born workers.30 One paper, for international students.37 decreasing share of international example, shows that foreign-born For example, Canada also recognizes students, and increased global efforts to workers patent at twice the rate of U.S.- that educational institutions need attract them, DHS concludes that the born workers, and that U.S.-born international students to compete in the United States must take additional steps workers patent at greater rates in areas ‘‘global race for research talent.’’ 38 In to improve these students’ educational with more immigration.31 The quality of experience (both academic and the nation’s STEM workforce in National Security]; see also The White House, practical) to ensure that we do not National Security Strategy 16 (Feb. 2015), available particular has played a central role in at https://www.whitehouse.gov/sites/default/files/ continue to lose ground. This is ensuring national prosperity over the docs/2015_national_security_strategy.pdf particularly true for international STEM last century and helps bolster the (‘‘Scientific discovery and technological innovation students, who have comprised a nation’s economic future.32 This, in empower American leadership with a competitive edge that secures our military advantage, propels english/pdf/research-stats/2010-eval-isp-e.pdf turn, has helped to enhance national our economy, and improves the human condition.’’) (citing Association of Universities and Colleges of security, which is dependent on the [hereinafter 2015 National Security Strategy]; The Canada, Momentum: The 2008 report on university nation’s ability to maintain a growing White House, National Security Strategy 29 (May research and knowledge mobilization: A Primer: 33 2010), available at https://www.whitehouse.gov/ and innovative economy. Innovation _ _ _ Driver 2: Global race for research talent, 3 (2008) sites/default/files/rss viewer/national security [hereinafter Evaluation of the Int’l Student strategy.pdf (‘‘America’s long-term leadership Program]. and doctoral research students includes third-party depends on educating and producing future 39 Citizenship and Immigration Canada, Study job creation). scientists and innovators.’’). permits: Post Graduation Work Permit Program, 27 See, e.g., Economics and Statistics 34 The 2015 National Security Strategy concludes available at http://www.cic.gc.ca/english/resources/ Administration, Department of Commerce, ‘‘STEM: that ‘‘the American economy is an engine for global tools/temp/students/post-grad.asp [hereinafter Good Jobs Now and For the Future’’ 5 (July 2011), growth and a source of stability for the international Canadian Study permits]. Similarly, Australia, now available at http://www.esa.doc.gov/Reports/stem- system. In addition to being a key measure of power offers international students who graduate with a good-jobs-now-and-future (‘‘Science, technology, and influence in its own right, it underwrites our higher education degree from an Australian engineering and mathematics (STEM) workers drive military strength and diplomatic influence. A strong education provider, regardless of their field of our nation’s innovation and competitiveness by economy, combined with a prominent U.S. study, a post-study work visa for up to four years, generating new ideas, new companies and new presence in the global financial system, creates depending on the student’s qualification. Students industries.’’); Giovanni Peri, Kevin Shih, Chad opportunities to advance our security.’’ 2015 who complete a bachelor’s degree may receive a Sparber, ‘‘Foreign STEM Workers and Native Wages National Security Strategy, supra note 33, at 15. two-year post study work visa, research graduates and Employment in U.S. Cities’’ 1 (National Bureau 35 Pew Research Center, ‘‘Growth from Asia with a master’s degree are eligible for a three-year of Economic Research, May 2014) Available at Drives Surge in U.S. Foreign Students’’ (June 18, work visa, and doctoral graduates are eligible for a http://www.nber.org/papers/w20093 (observing that 2015), available at http://www.pewresearch.org/ four-year work visa. See Australian Department of ‘‘Scientists, Technology professionals, Engineers, fact-tank/2015/06/18/growth-from-asia-drives- Immigration and Border Protection, Application for and Mathematicians (STEM workers) are surge-in-u-s-foreign-students/ (citing Institute for a Temporary Graduate visa, available at http:// fundamental inputs in scientific innovation and International Education, Open Doors Data: www.border.gov.au/FormsAndDocuments/ technological adoption, the main drivers of International Students: Enrollment Trends, Documents/1409.pdf [hereinafter Australian productivity growth in the U.S.’’). available at http://www.iie.org/Research-and- Temporary Grad. visa]. 28 Jennifer Hunt, ‘‘Which Immigrants are Most Publications/Open-Doors/Data/International- 40 Evaluation of the Int’l Student Program, supra Innovative and Entrepreneurial? Distinctions by Students/Enrollment-Trends/1948-2014. note 38, at 9. Entry Visa,’’ Journal of Labor Economics Vol 29 (3): 36 Organization for Economic Co-operation and 41 417–457 (2011). Citizenship and Immigration Canada, Quarterly Development (OECD) 2014, ‘‘Education at a Glance Administrative Data Release, available at http:// 29 Jennifer Hunt and Marjolaine Gauthier-Loiselle, 2014: OECD Indicators,’’ OECD Publishing at www.cic.gc.ca/english/resources/statistics/data- ‘‘How Much Does Immigration Boost Innovation?’’ http://dx.doi.org/10.1787/eag-2014-en or http:// release/2014-Q4/index.asp. American Economic Journal: Macroeconomics 2: www.oecd.org/edu/eag.htm. 42 31–56 (2010). See Government of Canada, Quarterly 37 University World News Global Edition Issue Administrative Data Release (July 20, 2015), 30 Id. 376, ‘‘Schools are the New Battleground for Foreign available at http://www.cic.gc.ca/english/resources/ 31 Id. Students’’ (July 15, 2015), available at http:// statistics/data-release/2014-Q4/index.asp; 32 Greenstone and Looney, supra note 26, at 2–3. www.universityworldnews.com/ University World News Global Edition, Schools are 33 See Congressional Research Service, Economics article.php?story=201507150915156. the New Battleground for Foreign Students, July 15, and National Security: Issues and Implications for 38 Citizenship and Immigration Canada, 2015, Issue 376, available at http:// U.S. Policy 28, available at https://www.fas.org/sgp/ ‘‘Evaluation of the International Student Program’’ www.universityworldnews.com/ crs/natsec/R41589.pdf [hereinafter Economics and 14 (July 2010) available at http://www.cic.gc.ca/ article.php?story=201507150915156.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00010 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13049

significant portion of students in STEM the changes proposed by this rule to the better explain its provisions. Overall,45 degree programs in the United States, existing STEM OPT extension would comments were primarily positive, but particularly at the graduate degree level. benefit both F–1 students and there were many criticisms as well. The difference is particularly notable international study programs in the A number of commenters expressed at the doctoral level, where United States, while adding important general opposition to the NPRM. For international students earned 56.9 protections. instance, some stated that the proposed percent of all doctoral degrees in The changes will allow F–1 STEM rule would not serve the national engineering; 52.5 percent of doctoral students to gain valuable on-the-job interest because it would harm U.S. degrees in computer and information training from qualified employers. workers, especially recent graduates sciences; and approximately half the Maintaining and enhancing practical with STEM degrees. Commenters also doctoral degrees in mathematics and training for STEM students improves suggested that there was insufficient statistics in the 2012–2013 academic their ability to absorb a full range of demand for STEM workers in the U.S. year.43 Recognizing that the project-based skills and knowledge labor market to accommodate STEM international education programs for directly related to their study. The OPT students. Other commenters were these students are increasingly changes will also help the nation’s concerned that STEM OPT students competitive, DHS is committed to colleges and universities remain would send their wages back to their helping U.S. educational institutions globally competitive, including by home countries. Based on these and contend with the expanded and diverse improving their ability to attract other concerns, various commenters global opportunities for international international STEM students to study in requested that DHS place a moratorium study. the United States. As noted above, these on practical training and related 3. The Need To Improve the Existing students enrich the academic and programs until, for instance, every STEM OPT Extension cultural life of college and university qualified U.S. citizen has a job. Another campuses throughout the United States commenter requested that STEM OPT With this rule, DHS also recognizes and make important contributions to the be phased out entirely after the current the need to strengthen the existing U.S. economy and academic sector. The participants finish their training. STEM OPT extension to enhance the changes will help strengthen the overall On the whole, however, commenters integrity and educational benefit of the F–1 program in the face of growing largely expressed support for the program in order to help maintain the international competition for the proposed rule. Commenters stated that nation’s economic, scientific, and world’s most promising international the NPRM would ‘‘make[] a number of technological competitiveness. DHS is students. important, thoughtful changes to working to find new and innovative improve and enhance the opportunities ways to encourage international STEM Additionally, safeguards such as available to F–1 students with STEM students to choose the United States as employer attestations, requiring degrees’’; that the proposed rule struck the destination for their studies. This employers to enroll in and remain in a reasonable balance by distributing rule, in addition to including a modified good standing with E-Verify, providing requirements among all who participate version of the STEM OPT extension for DHS site visits, and requiring that in STEM OPT, including international from the 2008 IFR, increases the STEM training opportunities provide students, institutions of higher maximum training time period for commensurate terms and conditions to education, and employers; and that the STEM students, requires a formal those provided to U.S. workers will help proposed Mentoring and Training Plan training plan for each STEM OPT protect both such workers and STEM requirement would improve the STEM extension, and strengthens protections OPT students. Implementing the OPT extension by clearly identifying the for U.S. workers. Providing an on-the- changes in this rule thus will more students’ learning objectives and the job educational experience through a effectively help STEM OPT students employer’s commitments. U.S. employer qualified to develop and achieve the objectives of their courses of enhance skills through practical study while also benefiting U.S. DHS thanks the public for its application has been DHS’s primary academic institutions and guarding extensive input during this process. In guiding objective in crafting this rule. against adverse impacts on U.S. the discussion below, DHS summarizes Many of the elements of the 2015 workers. and responds to all comments that were NPRM were based on public comments IV. Discussion of Comments and Final timely submitted on the NPRM. on the 2008 IFR, which contained input Rule from a range of stakeholders, including 45 In addition, DHS also received a number of students and the broader academic As noted above, during the public comments that were outside the scope of the comment period, 50,500 comments were rulemaking. For instance, some commenters stated community. The NPRM also that DHS should not allow any foreign nationals to incorporated recommendations from the submitted on the NPRM and related work in the United States. Other commenters Homeland Security Academic Advisory forms. Comments were submitted by a recommended that DHS make changes to the H–1B Committee.44 DHS continues to find that range of entities and individuals, visa classification. Another commenter stated that including U.S. and international the United States should ‘‘send green cards to [STEM] Ph.D.s right away.’’ Other commenters 43 Pew Research Center, ‘‘Growth from Asia students, U.S. workers, schools and recommended that DHS apply the proposed rule’s Drives Surge in U.S. Foreign Students’’ (June 18, universities, professional associations, requirements to F–1 nonimmigrant students 2015), available at http://www.pewresearch.org/ labor organizations, advocacy groups, engaged in pre-completion OPT or the initial 12- fact-tank/2015/06/18/growth-from-asia-drives- businesses, and other interested month period of post-completion OPT. surge-in-u-s-foreign-students/. Additionally, one commenter requested that DHS 44 The Homeland Security Academic Advisory persons. Many commenters provided extend the period during which students may apply Council provides advice and recommendations to concrete suggestions that DHS has for post-completion OPT and related employment the Secretary and senior leadership on matters evaluated and responded to in order to authorization. DHS did not propose any of these related to homeland security and the academic build upon the proposed rule and to changes in the NPRM, and readers of the NPRM community, including: student and recent graduate could not reasonably have anticipated that DHS recruitment, international students, academic would make such changes in this final rule. research and faculty exchanges, campus resilience, Security, Homeland Security Academic Advisory Accordingly, DHS has deemed these and similar homeland security academic programs, and Council Charter, available at http://www.dhs.gov/ comments outside the scope of this rulemaking, and cybersecurity. See U.S. Department of Homeland publication/hsaac-charter. has not discussed them further in this preamble.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00011 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13050 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

A. Including a STEM OPT Extension program. A significant number of and creativity while helping fuel the Within the OPT Program commenters discussed the taxation rules innovation that occurs both on and off applicable to F–1 students; some campus.... Learning through experience is 1. Description of Final Rule and asserted that no STEM OPT extension distinct from learning that takes place in the Changes From NPRM classroom. Experiential learning was appropriate as long as certain F–1 opportunities have become an integral part of Consistent with the NPRM, this final students remained exempt from certain U.S. higher education. rule provides for STEM OPT extensions payroll or employment taxes. Lastly, Universities individually made as part of the OPT program under the F– some commenters questioned the similar points, emphasizing the value of 1 nonimmigrant classification. This Department’s legal authority to include experiential learning. DHS received action will better ensure, among other a STEM OPT extension within the OPT comments on this point from a range of important national interests, that the program, while others maintained that a public and private institutions of higher U.S. academic sector can remain solid legal basis exists for such education. For example, one university globally competitive. Enabling extended extensions. The final rule retains STEM practical training for qualifying students stated that experiential learning OPT extensions as part of the OPT opportunities are particularly critical in with experience in STEM fields is program and explains in detail the consistent with DHS’s ‘‘Study in the ‘‘STEM fields where hands on work underpinnings of this policy by supplements classroom education.’’ States’’ initiative, announced after the responding in full to the many policy- 2008 IFR in September 2011, to Another university stated that related comments received from the ‘‘experiential learning fosters the encourage international students to public. study in the United States. That capacity for critical thinking and initiative particularly has focused on 2. Public Comments and Responses application of knowledge in complex or ambiguous situations.’’ Other university enhancing our nation’s economic, i. Experiential Learning as Part of commenters stated that experiential scientific and technological Completing a Full Course of Study competitiveness by finding new ways to learning ‘‘is a necessary component of a encourage talented international Numerous commenters submitted 21st century education, especially in the students to become involved in views regarding the proposition that STEM fields.’’ expanded post-graduate opportunities experiential learning opportunities such A national organization of graduate in the United States. The initiative has as practical training can significantly and professional students stated that taken various steps to improve the enhance the knowledge and skills offering a STEM OPT extension after Nation’s nonimmigrant student obtained by students during academic bachelor’s level studies allowed programs.46 study, thus furthering their courses of individuals to ‘‘identify research The final rule enhances the ability of study in the United States. interests and develop skills’’ that they F–1 students to achieve the objectives of Comment. DHS received hundreds of later can expand upon in their graduate their courses of study while also comments, mostly from students and studies when they focus on solving benefiting the U.S. economy. More universities, stating that experiential concrete problems. An organization students will return home confident in learning and practical training are key representing international educators their training and ready to begin a career parts of university education. DHS also stated that the OPT program in their field of study; others may seek received comments challenging this appropriately focuses on the critical part to change status to other nonimmigrant premise. One commenter, for example, of an education that occurs in classifications consistent with section strongly disagreed ‘‘that the objective of partnership with employers. 248 of the INA, 8 U.S.C. 1258, following the students’ course of study includes An organization that serves U.S. a STEM OPT extension, thus furthering the acquisition of knowledge through institutions engaged in international economic growth and cultural exchange on-the-job ‘training.’ ’’ Instead, this educational and cultural exchange in the United States. commenter stated that ‘‘the sole stated that ‘‘extended OPT eligibility Before discussing and responding to objective of the F–1 student’s course of creates space for more meaningful public input on the substantive terms of study is to obtain the desired degree and interactions between international OPT the STEM OPT extension program nothing more.’’ According to the participants and their U.S. host proposed in the 2015 NPRM, DHS first commenter, ‘‘[o]nce that objective has employers.’’ Other comments stated that addresses comments providing input on been achieved, the purpose of the F–1 a recent membership survey found that whether STEM OPT extensions should status has been fulfilled and the status 89 percent of responding employers be authorized at all. As discussed should terminate.’’ found that OPT participants ‘‘work in below, the STEM OPT extension rule is Many universities and higher conjunction with U.S. workers in a way grounded in the long-standing education associations, however, made that promotes career development for recognition by DHS and its predecessor statements to the contrary. Twelve everyone involved.’’ A business agency that (1) experiential learning and higher education associations— association stated that ‘‘practical practical training are valuable parts of representing land-grant universities, training allows foreign students in any post-secondary educational research universities, human resource technical fields to maximize the return experience and (2) attracting and professionals at colleges and on their investment in education.’’ retaining international students is in the universities, registrars, graduate schools, Response. The Department agrees short- and long-term economic, cultural, international student advisors, and with the many U.S. universities and and security interests of the United religious colleges and universities, educational- and international-exchange States. Thousands of comments among others—jointly filed a comment organizations that provided comments expressed an opinion on one or both of stating that ‘‘experiential learning is a stating that STEM OPT extensions these two points, either challenging or key component of the educational would enhance the educational benefit supporting the proposal to include a experience.’’ These higher education provided to eligible students through STEM OPT extension within the OPT associations stated that: practical training. DHS agrees that OPT allows students to take what they practical training is an accepted and 46 See DHS, ‘‘Study in the States,’’ http:// have learned in the classroom and apply important part of international post- studyinthestates.dhs.gov. ‘‘real world’’ experience to enhance learning secondary education.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00012 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13051

Comment. One commenter asserted to academic learning in STEM fields. As employment experience for academic that OPT had ‘‘limited (if any) many commenters attested, practical credit is not determinative with regard education[al] value’’ while noting that training is an important avenue for to the type or length of experiential he ‘‘was unable to find any comment enhancing one’s educational experience, learning that can be considered part of where someone described how the OPT particularly for STEM students. a full course of study. Cooperative program is related to a course of study Comment. A research organization education is one type of experiential or is a means to achieve specific contested the educational basis for learning, but not the only type used by educational goals.’’ Many comments, providing two-year STEM OPT the nation’s higher education however, described how practical extensions in part by noting that the community.48 training is related to a course of study ACT testing organization (previously Comment. A commenter stated that and serves as a means to achieve known as American College Testing) has DHS had not ‘‘provided any evidence educational goals. In addition to the published a ‘‘world of work map’’ . . . indicating that’’ nonimmigrant comments described above from stating that ‘‘a bachelor’s degree is students lack access to similar academic associations and educational sufficient for electrical engineering opportunities in their home countries. institutions, the Department received jobs’’ without discussing any extended Response. The United States hosts many comments from F–1 students period of practical training. The F–1 students from all over the world. describing the educational benefits that commenter also pointed out that the Although DHS acknowledges that some the OPT program provides both to Department of Labor’s Occupational students will have access to similar students and to academic programs. Outlook Handbook states that in order training opportunities in their home Examples of such comments include the to become an electrical engineer one countries, DHS believes it is self-evident following: ‘‘must have a bachelor’s degree’’ and that many will not. In any case, the • ‘‘OPT allows international students that ‘‘[e]mployers also value practical purpose of the rule is not simply to the opportunity to engage in practical experience, so participation in address a gap in training opportunities application of skills learned in academic cooperative engineering programs, in for F–1 students in their home countries programs.’’ which students earn academic credit for but to help students develop their • ‘‘[A]s an extension of college structured work experience, is valuable knowledge and skills through practical education, OPT extension is a great way as well.’’ According to the commenter, application, and to ensure that our to apply what’s learnt in class to our the standard OPT duration of 12 months nation’s colleges and universities real industry.’’ is more than sufficient to become a fully remain globally competitive in • ‘‘This experiential learning will trained engineer, as that is the duration attracting international STEM students allow me to integrate knowledge and of typical cooperative engineering to study and lawfully remain in the theory learned in the classroom with programs. United States. practical application and skills Response. DHS rejects the notion that Comment. Some commenters asked development in a professional setting.’’ ACT’s ‘‘world of work map,’’ a career DHS to reconsider the requirement that • ‘‘The proposal to reinstitute the planning tool for high school students, students be engaged in STEM OPT STEM extension will provide valuable attempts to describe anything other than solely related to their fields of study. hands-on, educational experience in the educational degree level typically Response. The Department has which STEM graduates gain real-world required for entry into an occupation. historically required the OPT immersion into a chosen industry.’’ The ACT’s career planning map takes no experience to be directly related to the • ‘‘The new rule will allow me to position on whether and to what extent student’s major fields of study because, meet my planned learning goals and on-the-job training and experiences help at its core, such work-based learning is allow for active reflection on [what] I launch a career, enhance an educational a continuation of the student’s program am accomplishing throughout the program, or help facilitate mastery of of study. Indeed, the purpose of OPT is experience.’’ material learned in the classroom. The to better position students to begin Response. Consistent with many of Occupational Outlook Handbook of the careers in their fields of study by the comments received from academic Department of Labor similarly does not providing ways for them to supplement associations, educational institutions, assess the relevancy of experiential and enhance the knowledge they gained and F–1 students, DHS agrees that the learning theory or the extent to which in their academic studies through OPT program enriches and augments a on-the-job training complements application of that knowledge in work student’s educational experience by classroom learning as part of post- settings. Allowing such students to providing the ability for students to secondary education. Instead, the engage in OPT in areas unrelated to apply in professional settings the Occupational Outlook Handbook their fields of study would be theoretical principles they learned in identifies the typical level of degree or inconsistent with the purpose of OPT. academic settings. By promoting the education that most workers need to OPT’s required nexus to the field of ability of students to experience first- enter the electrical engineering study also minimizes potential abuse or hand the connection between theory in occupation and the extent to which exploitation of international students by a course of study and practical additional training is needed (post- those seeking to impermissibly employ application, including by applying employment) to attain competency in them in unskilled labor or other abstract concepts in attempts to solve the skills needed in the occupation.47 unauthorized work in the United States. real-world problems, the OPT program The fact that cooperative education Moreover, this requirement is consistent enhances their educational experiences. programs in engineering may typically A well-developed capacity to work with 48 The commenter questioning the educational focus on the equivalent of one year of basis of the STEM OPT extension referred to the co- such conceptualizations in the use of op program at the Rochester Institute of Technology advanced technology, for example, is 47 BLS, Occupational Outlook Handbook, at (RIT) as a useful example, since it is one of the critical in science-based professions. ‘‘Occupation Finder’’ (Dec. 17, 2015), available at nation’s largest. RIT itself, though, recognizes that Practical training programs related to http://www.bls.gov/ooh/occupation-finder.htm? co-ops are just one type of experiential learning. See pay=&education= generally RIT, Cooperative Education and STEM fields also build competence in &training=&newjobs=&growth=&submit=GO (see Experiential Learning, https://www.rit.edu/ active problem solving and information defining ‘‘entry-level education’’ and overview/cooperative-education-and-experiential- experimentation, critical complements ‘‘on-the-job training’’ for the Occupation Finder). learning.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00013 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13052 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

with current regulations applicable to priority to finalize the STEM OPT pay tuition during their practical OPT more broadly; under these extension rule in a way that ensures training, it is reasonable to assume the regulations, OPT must be directly universities remain internationally increased attractiveness of U.S. colleges related to the student’s major area of competitive. Representative of many and universities due to the availability study. See 8 CFR 214.2(f)(10)(ii)(A). For comments from higher education, of OPT will benefit the U.S. academic these reasons, DHS has determined that another university commenter strongly sector. DHS’s conclusions about the it will not permit a student to engage in supported the STEM OPT extension benefit of the STEM OPT extension to STEM OPT in an area not related to his within the OPT program. The the F–1 student program and U.S. or her field of study. commenter stated that ‘‘if the United educational institutions found broad States is to maintain our economic, support in the comments submitted by ii. International Students and the educational, and scientific educational institutions themselves. National Interest competitiveness then it must continue Comment. A significant number of A variety of comments addressed to make itself attractive to the best talent commenters discussed whether STEM whether the STEM OPT extension worldwide.’’ Another commenter, who OPT participants positively or benefited STEM OPT students, U.S. identified as an F–1 student, noted that negatively impacted U.S. workers and institutions of higher education, and the many people from his home country U.S. students, with differing views on overall national interest. Some have degrees earned abroad, and that a whether nonimmigrant STEM commenters stated that the STEM OPT ‘‘U.S.-university degree alone is not professionals complemented or replaced extension would provide such benefits valued as [highly] as it was 10 or 20 U.S. STEM professionals. Some and supported the proposed rule for years ago.’’ This commenter stated that commenters cited their personal these or related reasons; others stated ‘‘experience on a complete project’’ will experience as STEM workers, or the that the proposed rule would negatively provide him an advantage over students experience of others they know, to impact the employment options of U.S. who studied in countries that don’t demonstrate the existence of either a STEM graduates and workers. The provide similar kinds of training labor surplus or a labor shortage. Many Department had carefully considered opportunities. others cited and attached reports and these issues in developing the NPRM, Response. The STEM OPT extension studies to show there was either a labor and has further evaluated these issues as program is designed to address the very surplus or a labor shortage. raised in the public comments. The point raised by the final commenter, i.e., A number of commenters stated that Department’s consideration of these that the program will improve and allowing employers to hire F–1 students issues is reflected in the discussion that expand the educational and training on a STEM OPT extension would immediately follows and throughout opportunities available to international disadvantage U.S. citizens and lawful this preamble. students and maintain and improve the permanent residents. Some of these Comment. One commenter stated that competitiveness of American commenters, as well as other a recent study ‘‘shows that American institutions of higher education. As commenters, provided facts and figures students who actively interact with their explained in the NPRM, see 80 FR suggesting there was not a labor international classmates are more likely 63383–84, there is increasing shortage of STEM workers. For example, to enhance their own self-confidence, international competition for attracting some commenters stated that wages leadership and quantitative skills.’’ 49 top international students, and other have not increased, as would be Another commenter, however, stated countries, including Canada and expected during a shortage, and some of that in explaining the STEM OPT Australia, currently have programs these commenters cited to a report from extension DHS had cited ‘‘no evidence similar to the STEM OPT extension. The the Economic Policy Institute that found of a measurable ‘academic benefit’ other STEM OPT extension serves to maintain that wages in the information than increased income for U.S. the United States’ global technology sector ‘‘have remained flat, institutions of higher education.’’ This competitiveness in these rapidly with real wages hovering around their commenter stated that any such evolving fields. As discussed in the late 1990s levels.’’ 50 Some commenters increased income would be ‘‘irrelevant NPRM, see, e.g., 80 FR 63382–84, this provided data that contradicted these to the OPT program, where F–1 students provides benefits to the U.S. economy claims. For example, one commenter do NOT pay tuition, at premium or that are independent of any need (or stated that STEM workers receive a standard rates, to the academic lack thereof) of STEM workers in the persistent wage premium and that institution from which they received a United States. wages for engineers are rising relative to STEM degree.’’ The commenter also As noted in the NPRM, in light of other occupations. stated that STEM OPT employment does increased global efforts to recruit Commenters cited data and reports on not and cannot provide ‘‘enhance[ed] international students, DHS believes both sides of the question of whether academic discourse and cultural that the United States must take there were sufficient numbers of exchange on campuses,’’ and that there additional steps to improve available qualified U.S. workers available to fill is an internal conflict in the dual goal educational experiences (both academic open STEM jobs in the U.S. economy. of bringing ‘‘knowledge and skills’’ to and practical) to ensure that the United One commenter stated that there were the U.S. economy through the STEM States remains competitive for such over 102,000 unemployed engineers. OPT extension, and helping STEM OPT students. Such steps benefit the U.S. Another commenter stated that there students acquire knowledge and skills. academic sector by contributing to its were two million unemployed A university commenter, however, economic support and increasing Americans with STEM degrees. A suggested that DHS should consider it a academic diversity. This is particularly number of commenters, however, stated true with regard to international STEM that even with millions of unemployed 49 See generally Jiali Luo and David Jamieson- students, who have comprised a Drake, ‘‘Examining the Educational Benefits of significant portion of students in STEM 50 Hal Salzman, Daniel Kuehn, Lindsay Lowell, Interacting with International Students’’ at 96 (June degree programs in the United States, Guestworkers in the High-Skill U.S. Labor Market: 2013), available at https:// An Analysis of Supply, Employment, and Wages 2 jistudents.files.wordpress.com/2013/05/2013- particularly at the graduate degree level. (Economic Policy Institute, Apr. 2013) available at volume-3-number-3-journal-of-international- While it is of course true that, as a http://www.epi.org/publication/bp359- students-published-in-june-1-2013.pdf. commenter noted, OPT students do not guestworkers-high-skill-labor-market-analysis/.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00014 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13053

Americans, ‘‘the manufacturing sector shortage of STEM workers. The answer is Bureau figures are skewed in this cannot find people with the skills to always ‘‘it depends.’’ It depends on which regard. A 2013 analysis from the Census take nearly 600,000 unfilled jobs, segment of the workforce is being discussed Bureau found that more than one out of according to a study last fall by the (e.g., sub-baccalaureates, Ph.D.s, biomedical five U.S. STEM graduates who were not 51 scientists, computer programmers, petroleum Manufacturing Institute and Deloitte.’’ engineers) and where (e.g., rural, employed in a core STEM field were One commenter stated that metropolitan, ‘‘high-technology corridors’’). working in a managerial or business ‘‘unemployment rates in key STEM It also depends on whether ‘‘enough’’ or ‘‘not position utilizing quantitative skills occupations are dramatically lower’’ enough STEM workers’’ is being understood developed through their STEM studies than the overall unemployment rate in in terms of the quantity of workers; the and often directly related to their the United States, citing to 2.8 percent quality of workers in terms of education or degree; that more than one in eight unemployment in ‘‘computer and job training; racial, ethnic or gender STEM graduates were working in diversity, or some combination of these mathematical occupations’’ and 2.2 53 healthcare (including 594,000 who were percent unemployment in ‘‘architecture considerations. working as physicians); and that another and engineering occupations,’’ among DHS credits NSF’s views on this 522,000 were considered outside of others. matter. Although DHS acknowledges STEM, but working in U.S. colleges and Response. DHS recognizes, as that commenters submitted a range of universities, where they were teaching explained by the National Science data related to the current state of the in the field of their STEM major and Foundation (NSF), that close study overall U.S. STEM labor market (and educating the next generation of STEM reveals that there is no straightforward DHS discusses much of this data in workers.56 In short, as pointed out by answer on whether the United States more detail below), DHS does not rely the U.S. Congress Joint Economic has a surplus or shortage of STEM on this data to finalize the rule. Instead, Committee, ‘‘differences in definitions workers.52 As the NSF summarizes: this rule is based on the widely across sources can complicate Some analysts contend that the United accepted proposition that educational comparisons or analyses of trends in States has or will soon face a shortage of and cultural exchange, a strong post- STEM.’’ 57 STEM workers. Some point to labor market secondary education system, and a DHS disagrees that the U.S. Census signals such as high wages and the fact that focus on STEM innovation are, on the data point to an across-the-board STEM vacancies are advertised for more than whole, positive contributors to the U.S. shortage of degree-related employment twice the median number of days compared economy and U.S. workers and in the opportunities for U.S. STEM graduates to non-STEM jobs. Other analysts note that overall national interest. As noted as the disparate definitions make that the shortage of STEM workers is a byproduct above, these principles, combined with of the ability of STEM-capable workers to conclusion unlikely. DHS believes that ‘‘divert’’ into other high-skill occupations the labor market protections and other many of the concerns identified about that offer better working conditions or pay. measures included in this rule, the proposed rule are overstated or Relatedly, some say even if the supply were generally provide the basis for the incomplete because of the nature of to increase, the United States might still have Department’s action. available data and reporting. a STEM worker shortage because an Comment. Many commenters stated Comment. A few commenters stated abundance of high-skill workers helps drive that data released by the U.S. Census that DHS failed to consider the full innovation and competitiveness and this Bureau in 2014 showed that three- range of research related to the proposed might create its own demand. quarters of American STEM graduates rule’s underlying policies. One such Those analysts who contend the United were not working in STEM fields. The States does not have a shortage of STEM commenter directed the Department’s workers see a different picture. They suggest implication was that such data attention to two bibliographies publicly that the total number of STEM degree holders indicated no need for the STEM OPT available on the Internet, and which in the United States exceeds the number of extension program and that such a were attached to the comment, because STEM jobs, and that market signals that program would not benefit the national the commenter believed the sources would indicate a shortage, such as wage interest. increases, have not systematically Response. The 2014 Census Bureau science and engineering except for the medical materialized. Analysts also raise concerns data cited by commenters did identify sciences. See NSF Mission Statement, available at about labor market dynamics in academia— that only about one-quarter of bachelor’s http://www.nsf.gov/about/what.jsp. See also, e.g., where a decreasing share of doctoral degree U.S. Congress Joint Economic Committee, STEM level graduates with STEM degrees are Education: Preparing for the Jobs of the Future 1 holders employed in the academic sector are 54 tenured—and in industry—where there are employed in STEM fields. The Census (April 2012) (explaining that the medical sciences reports that newly-minted degree holders and Bureau, however, made no accounting are not a STEM field), available at http:// of STEM graduates that use the www.jec.senate.gov/public/index.cfm/democrats/ foreign ‘‘guestworkers’’ on temporary visas 2012/4/stem-education-preparing-jobs-of-the- (e.g., H–1B, L–1) are displacing incumbent technical skills developed in their future. workers. A few of these analysts go as far as STEM courses in high-skilled jobs in 56 Liana Christin Landivar, U.S. Census Bureau, to argue that firms claim shortages and medicine, law, business, academia, or The Relationship between Science and Engineering mismatches in the hope of lowering management. For example, for purposes Education and Employment in STEM Occupations compensation and training costs. of the Census Bureau study, an (Sept. 2013), available at http://www.census.gov/ Close study of the surplus-shortage prod/2013pubs/acs-23.pdf?cssp=SERP. individual with a chemistry degree who 57 question reveals that there is no See U.S. Congress Joint Economic Committee, straightforward ‘‘yes’’ or ‘‘no’’ answer to becomes a physician is considered a STEM Education: Preparing for the Jobs of the whether the United States has a surplus or STEM graduate not employed in a Future 1 (April 2012) (explaining that the medical STEM field.55 The cited 2014 Census sciences are not a STEM field), available at http://www.jec.senate.gov/public/index.cfm/ 51 See generally Manufacturing Institute et al, democrats/2012/4/stem-education-preparing-jobs- ‘‘The Skills Gap in Manufacturing: 2015 and 53 Id. of-the-future; see also David A. Koonce, Jie Zhou, Beyond’’ (Mar. 2015), available at http:// 54 U.S. Census Bureau, ‘‘Where do College Cynthia D. Anderson, American Society for www.themanufacturinginstitute.org/Research/ Graduates Work: A Special Focus on Science, Engineering Education, ‘‘What is STEM?’’ (2011) Skills-Gap-in-Manufacturing/Skills-Gap-in- Technology, Engineering and Math’’ (July 2014), available at http://www.asee.org/public/ Manufacturing.aspx. available at http://www.census.gov/dataviz/ conferences/1/papers/289/download (explaining 52 NSF, Revisiting the STEM Workforce: A visualizations/stem/stem-html/. that ‘‘research institutes, government organizations Companion to Science and Engineering Indicators 55 The practice of medicine commonly is not and occupational groups, as well as different groups 2014, 9 (Feb. 4, 2015), available at http:// considered to be a STEM field. NSF, for example, involved in STEM, use different definitions of www.nsf.gov/pubs/2015/nsb201510/nsb201510.pdf. considers as its mission the support of all fields of STEM, based on their perspectives’’).

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00015 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13054 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

cited in the NPRM were ‘‘funded by qualifications, language skills, and United States as international students, employers of cheap alien workers to familiarity with host country customs are in general of no higher talent than justify the rule.’’ One of these and institutions.’’ 58 the Americans, as measured by salary, bibliographies identified 19 books, Comment. One commenter stated that patent filings, dissertation awards, and articles, and reports, most of which the NPRM’s references to U.S. patent quality of academic program.’’ 61 discuss the H–1B and L–1 visa rates for foreign-born individuals could Specifically, the EPI finding is focused programs. The second was an annotated not support the proposed rule because on whether foreign-born students who bibliography assembled by a professor ‘‘no nationality data for inventors is earned computer science and electrical providing an assessment and criticism associated with patents, so studies engineering degrees in the United States of four of the professor’s articles and 23 linking rates of patenting to immigration file patent applications at higher levels other sources, principally related to H– policy are inherently bogus.’’ Another than U.S.-born students earning the 1B work visas and employer-sponsored commenter stated that although the same degrees. For electrical engineering, green cards. NPRM cites publications by economist the analysis showed that patenting Response. DHS did not rely on Dr. Jennifer Hunt for several assertions activity of U.S. and foreign-born sources of information funded by about higher rates of patenting and students was about the same, while for employers of ‘‘cheap’’ foreign labor to innovation by foreign-born researchers computer science the analysis showed develop or justify the proposed rule. in the United States, the NPRM did not that foreign-born computer science Among other sources, DHS cited the mention a report published by the students apply for somewhat fewer following sources: the National Bureau Economic Policy Institute (EPI) (a patents than do their American peers. of Economic Research, NSF, the Journal research organization) ‘‘directly The EPI paper, however, of Labor Economics, the Congressional challenging [those] findings.’’ The acknowledges that the Hunt studies Research Service, the Brookings commenter questioned sources cited in cited in the NPRM cast a much broader Institution, the American Economic the NPRM regarding patent rates for net, encompassing a myriad of science Journal, the Pew Research Center, the foreign-born workers in the United and engineering fields. The Hunt papers Journal of International Students, the States. considered the impact of foreign-born Organization for Economic Co-operation Response. DHS disagrees with the workers employed in the United States and Development, University World statement that ‘‘no nationality data on in myriad visa classifications and fields News, Citizenship and Immigration inventors is associated with patents.’’ of study, and was not focused solely on Canada (a Canadian government One data source for citizenship and F–1 students or STEM OPT students agency), the Department of Immigration nationality data for U.S. patents is the (nor to just Computer Science and and Border Protection of Australia (an Patent Application Information Electrical Engineering research activity). Australian government agency), and the Retrieval Web site maintained by the As explained in the Hunt papers, there Homeland Security Academic Advisory U.S. Patent and Trademark Office.59 is support for the proposition that Committee (a discretionary committee When applying for a patent, each listed foreign-born scientists and engineers of the U.S. government established inventor submits an oath or power of achieve higher rates of U.S. patent under the Federal Advisory Committee attorney form on which they must filings. The Department continues to Act). indicate citizenship. Other researchers believe such patent rates support the Moreover, the commenter did not have analyzed data from the Census conclusion that the STEM OPT identify any specific findings in the Bureau, including the National Survey extension is in the national interest. sources cited in the bibliographies that of College Graduates and the Integrated Comment. Some commenters stated would support a change to the Public Use Microdata Series for the that the best interests of U.S. workers Department’s proposal. Many of the United States, in concert with patent and students were not being considered sources cited in the bibliography by DHS. Some of these commenters, as information from the U.S. Patent and involved the H–1B and L–1 well as others, also stated that the STEM Trademark Office, to source citizenship nonimmigrant visa programs, as well as OPT extension should exist only if there and nationality figures for U.S. employment-sponsored immigrant visa was a documented STEM labor shortage. patents.60 programs, rather than OPT. Some commenters stated that the With respect to the studies by Dr. Significantly, although the organization proposed STEM OPT extension would Hunt, DHS notes that the NPRM cited that prepared the H–1B and L–1 be harmful to U.S. workers and those studies in support of the general bibliography cited by the commenter students. proposition that STEM workers ‘‘are also submitted a separate, detailed A commenting employer stated that fundamental inputs in scientific comment on the NPRM, the while it prioritized U.S. worker hiring, innovation and technological adoption, organization did not cite its it also hired foreign-born students that critical drivers of productivity growth in bibliography or most of the sources it recruited on U.S. campuses ‘‘given the the United States.’’ 80 FR 63383. The contained therein as part of its talent pool graduating from U.S. Ph.D. EPI study did not question this submission. And in the course of and M.S. STEM programs.’’ The proposition. Rather, the EPI study reviewing the extensive bibliographies employer also stated: ‘‘we spend presented, the Department noted that at examined a narrow band of STEM fields millions of dollars annually above and least one of the sources, which to show that ‘‘immigrant workers, beyond what we have to pay to hire U.S. addressed permanent immigration and especially those who first came to the workers, merely to employ the talent not OPT, concluded that ‘‘international required to successfully run our 58 Ray Marshall, Value-Added Immigration 187 business.’’ Another commenter stated students studying in host country (Economic Policy Institute, 2011). postsecondary institutions are 59 U.S. Patent and Trademark Office, Patent that ‘‘it makes no sense for the United particularly valued because they Application Information Retrieval http:// States to educate and train foreign improve higher education, subsidize portal.uspto.gov/pair/PublicPair. See also, e.g., domestic students, contribute to Partnership for a New American Economy ‘‘Patent 61 Norman Matloff, ‘‘Are Foreign Students the Pending: How Immigrants are Reinventing the national economies and, if they qualify, ‘Best and Brightest’?’’ 17 (Economic Policy Institute, American Economy’’ at 23 n. 2 (June 2012). Feb 2013), available at http://epi.org/publication/ make valuable permanent residents 60 See, e.g., Jennifer Hunt et al, supra notes 28– bp356-foreign-students-best-brightest-immigration- because of their youth, occupational 29, in the appendices of the cited articles. policy/.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00016 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13055

students in the STEM fields and then students, as suggested by an analysis by By contrast, one commenter stated drive them away with obsolete one group. More than a dozen that ‘‘any change in quality of living is immigration policies.’’ comments repeated the finding from an dependent on highly skilled STEM Response. The number of economist’s study published by the workers who are fundamental inputs in international STEM graduates in the American Enterprise Institute, in scientific innovation and technological United States on STEM OPT extensions, conjunction with the Partnership for adoption.’’ Other commenters stated as of September 16, 2015, was New American Economy, that about 2.6 that ‘‘STEM students have contributed approximately 34,000, which, according jobs for Americans are created for each immensely to the U.S. economy with to estimates of the overall U.S. STEM foreign-born student who earns an their skills and innovation’’ and that labor market from the U.S. Department advanced degree in the United States because ‘‘the U.S. STEM industry is at of Commerce and the U.S. Bureau of and then works in a STEM field. the forefront of technology in the world, Labor Statistics (BLS), represents a Response. This rule neither asserts international students come here to get possible range of 0.19 percent 62 to 0.45 nor relies on a quantified, direct the exposure and learn.’’ percent of the overall U.S. STEM job relationship between job creation and Some commenters flagged market.63 For that reason, and in light of the STEM OPT extension. At what rate disagreement among economists with the worker protections included in this such job creation occurs is unsettled in some of the findings included in a study rule, the Department sees no reason to the peer-reviewed literature. To the published by the National Bureau of eliminate the STEM OPT extension Department’s awareness, job loss rates Economic Research (NBER) that altogether in response to concerns about tied solely to STEM OPT students have extrapolates from the fundamental point 64 impacts on U.S. workers. DHS instead not been documented in peer-reviewed for which it was cited by DHS. With seeks to balance the interests of literature. The figures cited in the respect to that study, some commenters stakeholders by both ensuring the comments summarized above also do criticized its conclusions, and some availability of a STEM OPT extension not relate solely to STEM OPT students. criticized the fact that it had not been program while strengthening program Comment. A commenter stated that peer-reviewed. Because the study had oversight and worker protections. The although the proposed rule discussed received some criticism, commenters rule strengthens the integrity of the the economic benefits of international asked DHS to defend its citation to it. Response. DHS has carefully STEM OPT extension by requiring students at length, DHS had not cited examined all of the commenters’ views participants in the extension to carefully any estimate of the number of U.S. regarding the reasons provided for the consider and document the relationship workers who were unable to obtain proposed rule and the sources relied between the STEM OPT opportunity employment because a position was upon by DHS, and the Department and the academic degree. The rule also filled by a STEM OPT student or the believes adequate data and information adds requirements relating to number of U.S. workers otherwise has been provided in support of the supervision and direction of STEM OPT adversely affected by the proposed rule. rule. As noted throughout this students in such jobs to better ensure Response. DHS acknowledges that preamble, DHS has reviewed studies the goals of the program are met. The this rule includes neither a quantified submitted by commenters and finds that rule also adds wage and other estimate of potential negative impacts to the basic approach in this rule protections for STEM OPT students and individual U.S. workers nor a quantified appropriately balances the goals of U.S. workers. estimate of specific benefits to U.S. protecting American workers and Comment. Numerous commenters educational institutions or the overall promoting American academic and repeated certain selected statements or economy. Instead, the rule is based on economic competitiveness by attracting figures on job creation or job loss related the widely accepted proposition that top quality international STEM to international students in the United educational and cultural exchange, a students. States. Hundreds of comments stated strong and competitive post-secondary that 340,000 U.S. jobs are created or With regard to the citation to the education system, and a focus on STEM NBER study, the reference in the 2015 supported each year by international innovation are on the whole positive students studying in the United States, NPRM was for the general proposition contributors to the U.S. economy and that STEM workers are fundamental citing figures from an international U.S. workers, and are in the national student economic value tool developed inputs in scientific innovation and interest. A significant number of technological adoption, and therefore by NAFSA. A few hundred comments comments agreed; many observed that instead posited that 430,000 U.S. critical drivers of productivity growth in STEM students have contributed the United States.65 The NSF, among workers lost jobs over a recent five-year significantly to the U.S. economy. As period because of international many others, has reached the same noted above, these principles, combined conclusion. Created by Congress in with the labor market protections and 62 1950, the NSF began publishing an U.S. Bureau of Labor Statistics Detailed 2010 other measures included in this rule, Standard Occupation Classification (SOC) annual report in 1955 regarding the occupations in STEM from an August 2012 SOC generally provide the basis for the condition of the science and engineering Policy Committee recommendation to OMB, Department’s action. workforce, long before the term ‘‘STEM’’ http://www.bls.gov/soc/Attachment_C_STEM.pdf. Comment. Some commenters stated There are 184 occupations in STEM included in this list. When matched to the corresponding that DHS had only considered studies 64 Giovanni Peri, Kevin Shih, Chad Sparber, employment data in the BLS Occupational supporting its conclusions and did not National Bureau of Economic Research, Foreign Employment and Wages, May 2014, the total sufficiently review information that STEM Workers and Native Wages and Employment employment of STEM occupations is approximately contradicted the sources cited by DHS. in U.S. Cities (May 2014), available at http:// 17 million. www.nber.org/papers/w20093. 63 U.S. Department of Commerce, Economic and One commenter suggested that DHS ‘‘go 65 Id. The article starts by observing that Statistics Administration, David Langdon et al., back to the drawing board and review ‘‘Scientists, Technology professionals, Engineers, ‘‘STEM: Good Jobs Now and for the Future’’ (1), the full range of related information,’’ and Mathematicians (STEM workers) are July 2011, available at http://www.esa.doc.gov/sites/ including the book ‘‘Falling Behind,’’ fundamental inputs in scientific innovation and default/files/stemfinalyjuly14_1.pdf (‘‘In 2010, there technological adoption, the main drivers of were 7.6 million STEM workers in the United which questions whether the United productivity growth in the U.S.’’ and was cited as States.’’). This STEM employment estimate is based States is falling behind in the global race a recent example of this premise in footnote 24 in on a narrower range of occupations. for scientific and engineering talent. the NPRM. 80 FR at 63383.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00017 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13056 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

was coined. According to the 2015 to continue and further enhance the (FICA) taxation when they are annual report, ‘‘[t]his workforce is of educational benefit of the STEM OPT performed by F–1 nonimmigrants particular interest to the Nation because extension, while protecting STEM OPT (among other nonimmigrant of its central role in fostering students and U.S. workers. 80 FR 63381. classifications) who are nonresidents for innovation, economic competitiveness, Response. DHS does not agree with Federal tax purposes.67 Many comments and national security.’’ 66 the proposition that an agency’s suggested that this exemption creates an Comment. A commenter requested decision to state new or revised reasons incentive for employers to hire F–1 that DHS annually publish data showing for its policy renders the agency’s policy nonimmigrants instead of U.S. workers, trends related to the impact of F–1 arbitrary and capricious. This rule is and that this rule would therefore nonimmigrant students on labor markets grounded in DHS’s seven years of disadvantage U.S. workers. Other in the United States. Another experience with the STEM OPT comments suggested that employers are commenter stated that in order to extension. In the 2015 NPRM, DHS not influenced by tax exemptions when improve oversight and understanding of proposed that, independent of the labor making hiring decisions. our legal immigration system, relevant market concerns that DHS expressed in A number of commenters, for agencies should publish timely online the 2008 IFR, the STEM OPT extension example, stated that employers save information for each nonimmigrant visa offers significant educational benefits to money by not incurring FICA payroll category and subcategory, including for students and educational institutions, as taxes when they hire F–1 F–1 nonimmigrant students with OPT. well as important economic and cultural nonimmigrants instead of U.S. workers This commenter stated that the public benefits. It is not arbitrary or capricious and that these savings induce employers disclosure should include the for DHS to consider its experience with to prefer F–1 nonimmigrants over U.S. underlying raw data gathered from the this program or to account for present- workers. A few hundred comments proposed Mentoring and Training Plan day realities when determining whether labeled the Department’s proposed and other relevant forms as to the and how to retain and improve the rulemaking as ‘‘corporate welfare.’’ One gender, age, country of origin, level of program in a new rulemaking. commenter stated that it is ‘‘unethical’’ training, field of training, institution(s) The commenter further requested that for F–1 nonimmigrants to be exempt of higher education, job title, wages, DHS explain ‘‘why its published policy from ‘‘paying taxes’’ since those employer, and work location for ‘‘all rationale has changed’’ since 2008. In nonimmigrants who are working under OPT visa holders.’’ According to the short, the policy rationale and, H–1B visas are not exempt. One commenter, this disclosure would be a importantly, the substance of the rules commenter suggested that the tax ‘‘critical tool to empower advocates to governing the program, have changed treatment of F–1 nonimmigrants has the ensure fair treatment and high standards based on a range of factors. As discussed effect of discouraging Americans from within these visa programs.’’ Multiple at length in the NPRM, these factors pursuing study in STEM fields. commenters stated that although they include the public comments received Another commenter stated that lacked full information, the collection on the 2008 IFR and DHS’s assessment excusing OPT participants from payroll and release of data on all nonimmigrant of the benefits provided by the 17- taxes was not the result of visa categories was needed as a tool to month STEM OPT extension. See, e.g., congressionally created tax policy but 80 FR 63379–63384. This assessment is help curtail fraud and abuse in instead a decision by ‘‘the informed by enduring national administration’’ to ‘‘simply defin[e] employment visa categories. Response. To the extent permissible priorities, such as strengthening the U.S. recent alumni as foreign ‘students’ ’’ and under existing law (including under the educational system by helping to ensure thus ‘‘allow[] employers to avoid payroll Privacy Act and related authority), that the nation’s colleges and taxes.’’ One commenter criticized DHS universities remain globally competitive relevant information related to the because the Department ‘‘offered in attracting international students in nothing in the proposed rule to deal STEM OPT extension program may be STEM fields and enhancing the United with the wage savings enjoyed by the available through the Freedom of States’ economic, scientific, and employers of OPT workers from not Information Act (FOIA) process. A DHS technological sectors. DHS believes that having to pay FICA payroll taxes for effort to provide data and a program it has appropriately considered the OPT workers.’’ This commenter stated evaluation of all nonimmigrant visa evidence in determining whether and that ‘‘the Department clearly believes it categories is not within the scope of the how to retain and improve the STEM has the authority to impose wage-related proposed rule and is not required by OPT extension. conditions on OPT employers, but it’s any current statute or regulation. unclear why the Department wouldn’t Comment. One commenter stated that iii. Relationship Between Taxation also address the FICA issue which some ‘‘[t]he NPRM is procedurally and Rules and the Authority of the Secretary suggest is one of the biggest sources of substantively arbitrary and capricious’’ of Homeland Security Regarding unfairness to U.S. workers competing because ‘‘DHS has entirely failed to Employment of F–1 Nonimmigrants provide a reasoned explanation of why with OPT workers.’’ Comment. DHS received a significant Several comments that referenced tax its published policy rationale for the number of comments that discussed issues cited analysis by a research proposed rule has so fundamentally whether existing Federal tax law creates organization stating that ‘‘OPT removed changed from that provided for the 2008 an incentive for employers to hire F–1 $4 billion from the Social Security and [IFR] that it now replaces.’’ The nonimmigrants for practical training, Medicare trust funds’’ over five years. commenter stated that DHS justified the rather than U.S. workers, and whether Others cited the same analysis to state 2008 IFR by asserting the need to DHS should make changes to Federal that the OPT program ‘‘costs Social provide labor to U.S. employers to tax law before or as part of finalizing a Security about $1 billion dollars a year’’ remedy a critical labor shortage, but has rule allowing a STEM OPT extension or ‘‘about $10,000 annually for each justified the proposed rule by the need with the OPT program. The tax law OPT’’ participant. provision primarily at issue in these However, many other commenters 66 NSF, Revisiting the STEM Workforce: A Companion to Science and Engineering Indicators comments is 26 U.S.C. 3121(b)(19), who discussed taxation stated that 2014, 5 (Feb. 4, 2015), available at http:// which exempts certain services from www.nsf.gov/pubs/2015/nsb201510/nsb201510.pdf. Federal Insurance Contributions Act 67 See generally 26 CFR 31.3121(b)(19)–1.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00018 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13057

because individuals in F–1 measures affecting federal tax policy or individual who is an F–1 nonimmigrant nonimmigrant status are ineligible to rules. generally is exempt from FICA and collect Social Security or Medicare Under current tax laws, when F–1 FUTA payroll taxes during the first five benefits and may never qualify in the nonimmigrants are exempt from payroll calendar years in which the individual future for such benefits, contributions to taxes, the employer saves an amount holds F–1 nonimmigrant status. those programs should not be required equal to 6.2 percent of the F–1 These provisions, although of course for services rendered by F–1 nonimmigrant’s salary up to the taxable relevant to F–1 students and employers nonimmigrants. Also, some commenters wage base ($118,500 in 2016) and an for purposes of determining FICA and who identified as F–1 students stated additional 1.45 percent of the total FUTA tax liability, neither displace, nor that payroll taxes may be affected by tax salary that, in the aggregate, would have authorize Treasury to displace, the treaties between the United States and been the employer contribution to the Secretary’s broad authority to other nations. A number of F–1 students Social Security and Medicare trust administer and enforce the nation’s noted that they pay city, state, and funds. The F–1 nonimmigrant similarly immigration laws. See, e.g., 6 U.S.C. federal income taxes, as well as sales saves a deduction from his or her salary 202; INA Sec. 103, 8 U.S.C. 1103. tax. in the same amount that would have Whether with respect to F–1 students or A few commenters submitted ideas on been the employee contribution. The any other category of nonimmigrants, how DHS could revise or address the FICA chapter of the IRC, which governs the IRC does not dictate the terms and payroll tax provisions. One commenter the payroll tax owed by employers and conditions relating to nonimmigrant suggested that the Department’s employees to fund the Social Security status. As Treasury explains in its U.S. proposed regulation could be changed and Medicare programs,68 provides that Tax Guide for Aliens (IRS Publication to remove any financial incentive to hire no payroll taxes are to be withheld for 519): ‘‘[An alien is] considered to have non-U.S. citizens by exempting services performed by a nonresident substantially complied with the visa employers ‘‘from FICA for two years alien who is an F–1 nonimmigrant 69 as requirements if [he or she has] not when they hire a new grad STEM U.S. long as the services are ‘‘performed to engaged in activities that are prohibited worker, and [charging] a 10% penalty carry out a purpose for which the by U.S. immigration laws and could for displacing an American STEM individual was admitted.’’ 70 result in the loss of [his or her] visa graduate when an OPT is hired.’’ A The IRC provides that aliens status.’’ In sum, DHS, not Treasury, is labor union proposed that ‘‘DHS should temporarily in the United States are charged with determining whether an require employers of STEM workers to resident aliens, rather than nonresident individual is maintaining F–1 pay an amount equal to payroll taxes aliens, for Federal tax purposes, when nonimmigrant status, and Treasury, not into a fund to encourage employment of they satisfy a substantial presence test DHS, must determine when and how U.S. STEM workers.’’ A research based on physical presence in the payroll tax obligations accrue and are organization proposed in the alternative United States.71 However, an individual calculated. See, e.g., id; INA Sec. that the amount of such payroll taxes temporarily present in the United States 101(a)(15), 8 U.S.C. 1101(a)(15); INA could be paid to the U.S. Treasury. as an F–1 nonimmigrant who Sec. 214, 8 U.S.C. 214. One commenter stated that ‘‘Congress substantially complies with the Accordingly, the assertion by a delegated authority to define periods of requirements of the visa classification is commenter that Treasury controls when employment for F–1 nonimmigrants to an ‘‘exempt individual’’ 72 who does not F–1 nonimmigrants are authorized for the Treasury Department, not DHS.’’ count days physically present in the employment is incorrect. This mistaken This commenter criticized the proposed United States as an F–1 nonimmigrant theory seems to be grounded in a rulemaking on the grounds that it misreading of select provisions of the ‘‘never mentions or references the for five calendar years toward the substantial presence test.73 Thus, an F– IRC referenced by the comment detailed applicable laws governing the concerning work performed as an FICA, Federal Unemployment Tax Act 1 nonimmigrant who is an ‘‘exempt individual’’ (for any part of five employee of a school, college, or (FUTA), or Social Security university. Such work is exempt from withholding.’’ The commenter also calendar years) is not a resident alien for taxation under the IRC, and as a both FICA and FUTA under the IRC stated that ‘‘the proposed agency policy when Treasury determines that the authorizing graduates on F–1 visas to nonresident alien is not subject to payroll taxes for Social Security and worker is both taking classes at and work full-time while exempt for FICA working for a qualifying institution and withholding directly conflicts with the Medicare contributions (for those five calendar years). Similarly, the FUTA should be considered an exempt Internal Revenue Code (IRC), the Social student.76 Although Treasury has Security Act (SSA), and Supreme Court chapter of the IRC, which governs payroll taxes for unemployment further defined these provisions precedent.’’ administratively, neither the IRC nor Response. Matters related to Federal compensation,74 exempts from unemployment taxes those services Treasury’s regulations relate to when F– taxation are controlled by Congress 1 nonimmigrants are authorized to through the IRC, and by the Department performed by a nonresident alien who is an F–1 nonimmigrant.75 In short, an work. Rather, they relate to when of the Treasury (Treasury) through certain employed students (whether F– regulations promulgated thereunder, not 68 1 nonimmigrants or U.S. citizens) who DHS. Although Congress may revise, 26 U.S.C. 3101, et seq. 69 are enrolled in and regularly attending eliminate, or create new obligations or 26 U.S.C. 3121(b)(19). 70 26 CFR 31.3121(b)(19)–1(a)(1). classes are exempt from payroll taxes. In conditions based on the payroll tax 71 26 U.S.C. 7701(b). other words, these provisions do not exemptions in the IRC for F–1 72 26 U.S.C. 7701(b)(5)(D)(i)(I). limit when an F–1 nonimmigrant can nonimmigrants, DHS may not do so. 73 An individual present in the United States for work, but instead control whether FICA Similarly, although Treasury may issue any part of a calendar year as an F–1 nonimmigrant and FUTA taxes apply to services regulations interpreting and must count that year toward the five year cap on being considered an ‘‘exempt individual.’’ 26 CFR provided by certain individuals to implementing federal tax laws, DHS 301.7701(b)-3(b)(4), (7)(iii). may not. DHS is thus unable to amend 74 26 U.S.C. 3301, et seq. 76 26 U.S.C. 3121(b)(10) (FICA) and 3306(c)(10)(B) the rule to accommodate reforms related 75 26 U.S.C. 3306(c)(19); see also 26 CFR (FUTA); see also 26 CFR 31.3121(b)(10)–2 (FICA) to payroll taxation or to take other 31.3306(c)(18)–1(a)(1). and 31.3306(c)(10)–2 (FUTA).

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00019 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13058 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

certain institutions.77 DHS thus rejects nonimmigrants eligible for STEM OPT authority underpinning the OPT the suggestion that Treasury controls extensions, may not be exempt because program. Some commenters challenged when F–1 nonimmigrants are they have already been in the United the Department’s authority to maintain authorized for employment. States for parts of five calendar years. In an OPT program at all, in part because Additionally, following consultation regards to the tax treaty provisions, it there is no express statutory authority with Treasury, DHS has determined that should be noted that U.S. citizens establishing such a program. A it would be incorrect to conclude that would receive tax treatment while commenter with this view cited a 1977 the payroll tax exemption for F–1 working abroad that is commensurate regulation from the legacy Immigration nonimmigrants ‘‘removes’’ any monies with the treatment received by nationals and Naturalization Service (INS) in from the Social Security or Medicare of our treaty partners while they work which the INS had stated that there was program trust funds, despite many in the United States. In addition, it is no express authority in the INA comments to this effect. At most, the not clear to DHS that compliant establishing OPT employment for F–1 statutory tax exemption has the employers would typically perceive an students. Other commenters objected to (intended) effect of not generating FICA incentive to hire F–1 nonimmigrants the STEM OPT extension on the and FUTA payroll tax revenue when due to a payroll tax exemption, as it is grounds that it is inconsistent with certain F–1 nonimmigrant students are not clear how employers would other provisions of the INA regulating employed. definitively know a particular visa classifications that expressly Moreover, the amount of revenue nonimmigrant’s tax treatment prior to provide employment authorization. affected by these payroll tax exemptions hiring.79 Based on these factors, other These commenters took the position does not approach the $4 billion over provisions in this rule that safeguard the that the only permissible objective of an five years (i.e., just under $1 billion interests in U.S. workers, and DHS’s F–1 student’s course of study is to annually, or approximately $10,000 long experience administering and obtain a degree. According to those annually per STEM OPT participant) enforcing the nation’s immigration laws, commenters, once that objective has cited by certain commenters. Other DHS concludes that commenters’ been achieved, the purpose of the F–1 commenters noted that the research concerns about the incentives created by status has been fulfilled and the organization that calculated these the statutory tax exemptions are student’s status should terminate. Other figures did not take into account that (1) overstated. commenters contested the Department’s employers incur other costs if they DHS also observes that there are a authority to provide STEM OPT choose to hire an individual who is an number of other deficiencies in the extensions because such extensions F–1 nonimmigrant, and (2) many F–1 figures suggested for the fiscal impact of were inconsistent with one of the nonimmigrants are not tax exempt. the payroll tax exemptions for F–1 ‘‘INA’s primary purpose[s],’’ which they With respect to the first point, some nonimmigrants. For instance, the figures characterized as restricting immigration commenters noted that any employer assume incorrectly that every F–1 ‘‘to preserve jobs for [U.S.] workers.’’ savings related to tax laws are at least nonimmigrant on a STEM OPT One commenter specifically argued in part offset by administrative costs, extension has displaced a U.S. worker that the statutory authority for OPT was legal fees, and staff time related to who would otherwise be subject to undermined by certain congressional securing the authority under U.S. payroll taxes, and that every STEM OPT action in 1990 to create an OPT-related immigration law to employ the foreign- student ultimately draws down on the pilot program, followed by the failure in born worker.78 With respect to the funds generated by payroll taxes. The 1994 to extend that program: second point, other commenters figures also appear to be based on emphasized that not all F–1 calculations related to the total number The only clear statutory authority that has ever existed for an OPT-like program was a nonimmigrants are exempt from payroll of students engaged in OPT, not just taxes under these specific FICA and three-year pilot program created by section those on STEM OPT extensions. In 221 of the 1990 Immigration and Nationality FUTA rules. Instead, some may be addition to the reasons discussed above, Act [sic] that allowed foreign graduates to exempt because of tax treaty provisions, DHS declines to make changes to a work in fields unrelated to their degree.... while many others, including F–1 successful international student However Congress did not allow the program program based on speculative assertions to exist for more than a few years after its 77 Among other workers, these provisions are about the impact of certain statutory tax creation, in part because an INS and DOL inapplicable to medical students in their capacity exemptions on the programs funded by evaluation found that it ‘‘may have adverse as hospital residents. Mayo Found. For Med. Educ. consequences for some U.S. workers.’’ & Research v. U.S., 562 U.S. 44 (2011). The Mayo the FICA and FUTA taxes. Furthermore, case, cited by a commenter, is not controlling as to if those tax exemptions are in fact The implication is that because whether STEM OPT extensions are permitted for F– problematic, they must be addressed by Congress had authorized that specific 1 nonimmigrants. Although the Supreme Court Congress. OPT program by statute and then concluded that the FICA and FUTA exemptions for allowed it to expire, other forms of OPT students are not available to medical residents iv. Legal Authority working at hospitals, id., that decision (and that are not specifically authorized in Treasury’s position on the circumstances in which Comment. DHS received many statute are not legally justifiable. employed students working for the institution comments concerning the legal Other commenters, however, where they take classes are exempt from payroll submitted comments recognizing the taxes) does not address the availability of work 79 Employers, for example, may not know legal justifications for the OPT program. authorization to F–1 nonimmigrants more broadly. whether an individual is in F–1 nonimmigrant 78 A number of commenters, for example, Below, DHS estimates some of the direct costs status or whether he or she has been in such status that this rule imposes upon employers of F–1 in the United States for less than five years. DHS recounted the history of post- nonimmigrant students on STEM OPT extensions. notes that employers do not necessarily have access completion OPT in support of the In addition to this rule’s direct costs, the incentive during the recruitment process to specific proposed rule. Those commenters noted cited by the commenters is offset by the fact that documentation confirming such information. And STEM OPT students are in the United States DOJ cautions against requesting such information as that OPT employment had been temporarily, and are therefore, to many employers, it may cause the perception of discriminatory provided by INS and DHS since at least inherently less valuable than U.S. workers. For conduct. See Office of Special Counsel, Technical 1947, and they concluded that DHS was instance, a commenter noted that there are Assistance Letter on Pre-employment Inquiries on sound legal footing in including a significant costs and uncertainty associated with Related to Immigration Status, at http:// retaining an F–1 nonimmigrant beyond the STEM www.justice.gov/sites/default/files/crt/legacy/2013/ STEM OPT extension within the OPT OPT extension period. 09/11/171.pdf. program. Some commenters stated that

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00020 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13059

DHS was utilizing broad authority Washington Alliance, No. 1:14–cv– during which the student is pursuing a granted by Congress to enforce and 00529, slip op. at 18–19. In addition to full course of study in one educational administer the immigration laws. Those explicitly authorizing the Secretary to program . . . and any period or periods commenters generally considered admit international students to the of authorized practical training, plus [a persuasive the fact that Congress had United States temporarily to pursue a grace period] following completion of amended the INA numerous times in course of study, see 8 U.S.C. the course of study or authorized ways that indicated its knowledge of, 1101(a)(15)(F)(i), the INA endows the practical training within which to and acquiescence to, the existence of a Secretary with broad discretion to depart from the United States.’’ 48 FR significant period of post-graduation promulgate regulations establishing the 14575, 14583–14584 (Apr. 5, 1983) OPT. time and conditions under which such (emphases added). See also 8 CFR One commenter that recognized the aliens may be admitted, see 8 U.S.C. 214.2(f)(5)(i). Moreover, during this period, Department’s legal authority in issuing 1103(a)(3), 1184(a)(1), 8 U.S.C. Congress has had occasion to amend the this rule addressed the significance of 1101(a)(15)(F)(i), 1103(a) and 1184(a)(1). INA in general, and F–1 nonimmigrant Congress’ actions in 1990 to create a The Secretary also has broad authority to determine which individuals are provisions in particular, on numerous pilot program in which F–1 students ‘‘authorized’’ for employment in the occasions. Despite these numerous could receive employment authorization United States. See 8 U.S.C. 1324a, 8 CFR amendments, Congress has left for practical training unrelated to the part 274a. completely undisturbed the their fields of study. Although Congress To the extent that comments longstanding interpretation that later allowed the pilot program to expire challenging DHS’s legal authority international students are authorized to in 1994, the commenter explained that concerned the OPT program generally, work in practical training. See e.g., Pub. the program’s creation supported the such comments are outside the scope of L. 87–256, § 109(a), 75 Stat. 527, 534 Department’s authority to permit OPT this rulemaking, which relates (Sept. 21, 1961) (allowing an F–1 employment related to students’ fields specifically to the availability of STEM nonimmigrant’s alien spouse and minor of study: OPT extensions. DHS did not propose to children to accompany the F–1 In the Immigration Act of 1990, Congress modify the general post-completion nonimmigrant to the United States); authorized the creation of a pilot program OPT program in the proposed rule. Immigration Act of 1990 § 221(a) which allowed F–1 student employment in Moreover, to the extent that such (permitting F–1 nonimmigrants to positions that were unrelated to the alien’s comments can be construed as engage in limited employment unrelated field of study. The creation of this program challenging DHS’s authority to to their field of study); Illegal bolsters the argument that DHS’s implement a STEM OPT extension in Immigration Reform and Immigrant interpretation is reasonable.... The logical conclusion to draw here is that Congress only particular, DHS finds the comments Responsibility Act of 1996, Pub. L. 104– acted explicitly to authorize F–1 students to unpersuasive. 208, § 625, 110 Stat. 3009–546, 3009– receive post-completion training in fields Federal agencies charged with 699 (adding limitations related to F–1 unrelated to their studies because the law administration of the immigration laws nonimmigrants at public schools); already allowed post-completion training in have long interpreted the statutory Enhanced Border Security and Visa fields related to the student’s studies. authorities cited above to encompass Entry Reform Act of 2002, Pub. L. 107– on-the-job training that supplements 173, §§ 501–502, 116 Stat. 543, 560–63 This commenter, along with many classroom training for international (implementing monitoring requirements others, expressed support for the students. See Washington Alliance, No. for international students); Pub. L. 111– proposed rule as a reasonable 1:14–cv–00529, slip op. at 24; 306, § 1, 124 Stat. 3280, 3280 (Dec. 14, construction of the authorities provided Programmers Guild, Inc. v. Chertoff, 338 2010) (amending F–1 with respect to to the Department by the immigration F. App’x 239, 244 (3d Cir. 2009) language training programs). ‘‘[W]hen laws. (unpublished). For example, in 1947, Congress revisits a statute giving rise to Response. The Homeland Security legacy INS promulgated a rule a longstanding administrative Act and the INA provide DHS with authorizing international students to interpretation without pertinent change, broad authority to administer the INA work after graduation based upon the congressional failure to revise or and regulate conditions for admission statutory authority that is similar in repeal the agency’s interpretation is under nonimmigrant categories, relevant respects to current statutory persuasive evidence that the including the F–1 student classification. authority governing the admission of interpretation is the one intended by See, e.g., 6 U.S.C. 202; 8 U.S.C. international students. The 1947 rule Congress.’’ Commodities Futures 1103(a)(1) and (3); 8 U.S.C. 1184(a)(1). provided that ‘‘in cases where Trading Comm’n v. Schor, 478 U.S. 833, As the U.S. District Court for the District employment for practical training is 846 (1986) (quoting NLRB v. Bell of Columbia recently observed: required or recommended by the school, Aerospace Co., 416 U.S. 267, 275 Congress has delegated substantial the district director may permit the (1974)). authority to DHS to issue immigration student to engage in such employment In light of the long regulatory history regulations. This delegation includes broad for a six-month period subject to for the OPT program, including the powers to enforce the INA and a narrower extension for not over two additional Department’s longstanding directive to issue rules governing six-month periods.’’ See 12 FR 5355, interpretation of the INA and the nonimmigrants. See 8 U.S.C. 1103(a)(1) . . .; 5357 (Aug. 7, 1947). Again in 1973, longstanding congressional recognition id. § 1103(a)(3) (‘‘The Secretary of Homeland legacy INS promulgated regulations of that interpretation, DHS is confident Security shall establish such regulations authorizing, pursuant to the INA, that this rulemaking is consistent with [inter alia,] as he deems necessary for employment for international students statutory authority. As explained by the carrying out his authority under the for practical training under certain provisions of the INA.’’); id. § 1184(a)(1) recent decision in the Washington (‘‘The admission to the United States of any conditions. See 38 FR 35425, 35426 Alliance litigation: alien as a nonimmigrant shall be for such (Dec. 28, 1973). For decades, INS and DHS’s interpretation of F–1—inasmuch as time and under such conditions as the DHS regulations have defined an it permits employment for training purposes [Secretary] may by regulations international student’s duration of without requiring ongoing school prescribe. . . .’’). status, in pertinent part, as ‘‘the period enrollment—is ‘‘longstanding’’ and entitled

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00021 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13060 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

to deference. See Barnhart [v. Walton], 535 F–1 nonimmigrants. See H.R. Rep. No. referenced 1977 final rule, in which U.S. [212,] 220 [(2002)]. Second, Congress 101–723, pt. 1, 1990 WL 200418, *6746 legacy INS reduced the maximum OPT has repeatedly and substantially amended (recognizing that the legislation period from 18 months to one year. See the relevant statutes without disturbing this ‘‘expands the current authority of 42 FR 26411 (May 24, 1977). The interpretation. These amendments have not students to work off-campus’’). Second, commenter asserted that legacy INS been ‘‘isolated.’’ Public Citizen [v. U.S. Dep’t of Health and Human Services], 332 F.3d as recognized by other commenters, the issued the 1977 rule based on a finding [654,] 668 [(D.C. Cir. 2003)]. The Immigration fact that Congress chose to create a pilot that an extended duration of OPT could and Nationality Act of 1952, in particular, program specifically authorizing cause injury to U.S. workers because radically changed the country’s immigration employment unrelated to a student’s OPT students could work for less than system. And, the Immigration Act of 1990 field of study is itself proof that prevailing wages during their training imposed a host of new protections for Congress understood that employment period. The commenter asked whether domestic workers and explicitly authorized related to such a field of study already DHS had considered this 1977 INS F–1 students to engage in certain forms of had been appropriately authorized by finding when developing the present employment. By leaving the agency’s the INS. The fact that Congress, acting rulemaking, and whether DHS ‘‘now interpretation of F–1 undisturbed for almost against the backdrop of the longstanding rejects the earlier finding of the INS’’ 70 years, notwithstanding these significant overhauls, Congress has strongly signaled OPT program, sought to expand that ‘‘[t]here is no indication that the that it finds DHS’s interpretation to be students’ employment opportunities, Congress intended that [a foreign reasonable. without curtailing the existing OPT student] remain and work in the U.S. for program, indicates that Congress did not an extended period after completion of Washington Alliance, No. 1:14–cv– perceive OPT to be in contravention of his course of study and until he 00529, slip op. at 26–27. Department authority. Indeed, the fact becomes fully experienced in his With respect to one commenter’s that Congress understood that F–1 occupational skill.’’ 42 FR at 26412. reliance on the 1977 INS rulemaking, nonimmigrants were regularly Response. DHS acknowledges that DHS recognizes that legacy INS employed is reflected in the fact that, as approximately 40 years ago, legacy INS previously noted the lack of specific early as 1961, Congress acted to exempt limited the maximum overall period of statutory provisions expressly such students from certain payroll taxes. practical training for all degree authorizing OPT. DHS agrees that the If F–1 nonimmigrants could not be programs from 18 months to 12 months. INA contains no direct and explicit employed, there would be no reason for The INS, however, made this change for provision creating a post-completion Congress to recognize in the tax code policy reasons and not legal reasons. At training program for F–1 students. But that employment could be related to the no point did the INS conclude that this does not mean that the Department purpose specified in 8 U.S.C. statutory authority required it to reduce lacks the authority to implement such a 1101(a)(15)(F) or to exempt such the 18-month maximum period for OPT. program. Indeed, as the 1977 Rule employment from payroll taxes.80 Moreover, INS apparently made the recognized, ‘‘section 103 of the Finally, DHS disagrees with the statement about legislative intent in the Immigration and Nationality Act (8 suggestion that the rule’s objectives course of rejecting a request to provide U.S.C. 1103) . . . provides the Attorney conflict with one of the ‘‘INA’s primary an across-the-board maximum of two General and the Commissioner of the purpose[s]’’ of restricting immigration years for practical training in all fields Immigration and Naturalization Service ‘‘to preserve jobs for [U.S.] workers.’’ of study. This statement did not define certain powers and duties, including the The final rule, as with the proposed the scope of INS’ legal authority. And as establishment of regulations.’’ 42 FR at rule, contains important safeguards part of this rule, DHS neither considered 26411. And it was pursuant to that specifically designed to guard against nor proposed an across-the-board authority that in the very 1977 such effects, while also furthering increase in the duration of OPT for all rulemaking in which the INS made the crucial benefits stemming from students, but instead only proposed the statement cited by the commenter, the academic and cultural exchange, extension for on-the-job training in INS amended the regulations that innovation, and economic growth. STEM fields. authorized ‘‘a nonimmigrant alien Accordingly, this rule maintains the With respect to policy, DHS also student to engage in practical training’’ U.S. Government’s longstanding legal acknowledges that legacy INS and continued to authorize OPT. Id. As and policy positions on this matter; recognized in the same 1977 rulemaking noted above, Congress’s actions over practical training is an important and that ‘‘[i]t may be that foreign students several decades make clear that recognized element of a student’s will be less likely to find employment, Congress understood the F–1 statutory educational experience and full course and perhaps fewer aliens would enter provisions to permit ‘‘at least some of study. the U.S. to obtain their education here.’’ period of employment’’ and that ‘‘the Comment. A number of commenters See 42 FR at 26412. DHS, however, does clause in F–1—‘solely for the purpose of took issue with the duration of STEM not believe that it should be constrained pursuing such a course of study’—does OPT extensions as proposed in the 2015 to the factual and policy determinations not foreclose employment.’’ Washington NPRM, asserting that a two-year that legacy INS made approximately 40 Alliance, No. 1:14–cv–00529, slip op. at extension was contrary to DHS’s years ago with respect to the effect of 21. statutory authority. A commenter stated the overall OPT program on the 1977 Further, the fact that Congress has that authorizing post-completion U.S. labor market. The world has recognized and approved of OPT is employment for an ‘‘extended period of changed a great deal since that time, and further supported, rather than time’’ is unlawful and quoted the above- DHS believes it appropriate to shape undermined, by its creation of an OPT- policy accordingly. related pilot program in 1990. First, the 80 Congress added 26 U.S.C. secs. 3121(b)(19) and As noted previously, the legislative history indicates that 3306(c)(19) to the Internal Revenue Code in 1961. enhancements made by this rule are Congress understood the new pilot See P.L. 87–256, Sections 110(b), 110(f)(3) (1961). supported by data generally suggesting program, which authorized temporary These provisions exempt from payroll taxes certain that international students contribute to F–1 nonimmigrants who have not been present in employment unrelated to a student’s the United States in F–1 status for parts of five the overall U.S. economy by building field of study, as an expansion of off- calendar years, as discussed supra in part IV.A.3 of global connections between their campus employment authorization for this preamble. hometowns and U.S. host cities.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00022 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13061

Evidence links skilled migration to employing workers who possess at least INA, 8 U.S.C. 1101(a)(15)(B).81 More transnational business creation, trade, a bachelor’s degree. Unlike the H–1B critically, the overlap between the and direct investment between the visa program where an employer must STEM OPT extension and the H–1B visa United States and a migrant’s country of petition for an H–1B visa for a foreign program does not invalidate DHS’s origin. International STEM students also worker to fill a job opening, in the interpretation of the controlling contribute more specifically to a number F–1 visa program, it is F–1 students, statutory authorities. For that reason, of advanced and innovative fields that including those affected by this final the court in Washington Alliance are critical to national prosperity and rule, who seek to participate in OPT in rejected arguments similar to those security. By conducting scientific order to further their education attained made by commenters that DHS had research, developing new technologies, through course work in the United ‘‘circumvented the statutory restrictions advancing existing technologies, and States. Unlike an H–1B specialty that rightfully should be applied’’ to creating new products and industries, occupation worker, a student will college-educated labor.82 for example, STEM workers diversify participate in STEM OPT as a way to Comment. A number of commenters the economy and drive economic complement his or her academic similarly asserted that the proposed growth, while also producing increased experience in the United States Cap-Gap provision, which further employment opportunities and higher pursuant to an individualized Training extends F–1 status for students who are wages for U.S. workers. The rule also Plan that helps ensure that the STEM beneficiaries of H–1B petitions, reflects DHS’s consideration of potential OPT experience furthers the student’s undermined the authority for this impacts on the U.S. labor market and course of study. rulemaking. One commenter, for includes important safeguards for U.S. DHS thus agrees with the U.S. District example, wrote that there is a workers in STEM fields. Court for the District of Columbia, fundamental conflict between the Comment. Some commenters made which explained the relationship purpose of the student visa program and arguments based on comparisons between the F–1 and H–1B visa STEM OPT extensions in that student between the STEM OPT program and classifications in its recent decision in visas are not to be used as a means of the H–1B program, suggesting that DHS Washington Alliance. In that decision, immigrating to the United States. The should infer from the H–1B category in which the court upheld the commenter cited to comments from implicit limits on DHS’s legal authority Department’s legal authority to include individuals who supported the to allow F–1 students to engage in a STEM OPT extension within the proposed rule, including the Cap-Gap practical training as part of completing general OPT program, the court stated: provision, as evidence that the rule their full course of study. Some would facilitate longer-term commenters asserted that DHS had no F–1 and H–1B perform the interlocking task of recruiting students to pursue a course immigration to the United States. The legal authority for a STEM OPT commenter expressed that the rule extension because it ‘‘circumvents’’ the of study in the United States and retaining at least a portion of those individuals to work would transform the statutory basis for statutory requirements of the H–1B visa in the American economy. . . . But H–1B— the admission of foreign students— classification. Relatedly, one commenter which applies to aliens seeking to work in a admission ‘‘solely for the purpose of suggested that granting employment ‘‘specialty occupation’’—is far broader than pursuing . . . a course of study’’—into authorization through the OPT program the employment permitted by the OPT admission ‘‘for pursuing a course of permits F–1 students to sidestep program. DHS’s interpretation of the word study or hanging around long enough to ‘‘student’’ does not render any portion of H– restrictions on employment of foreign get an H–1B visa.’’ The commenter nationals enacted by Congress through 1B, or its related restrictions, surplusage. stated that the Cap-Gap provision serves establishment of a limited number of Congress has tolerated practical training of no purpose other than to assist F–1 employment-authorized visa categories. alien students for almost 70 years, and it did students to remain in United States in In support of this contention, the nothing to prevent a potential overlap between F–1 and H–1B when it created the violation of the terms of their commenter cited the decision by the modern H–1B category in 1990. As such, the admission. U.S. District Court for the Northern Court does not believe that DHS’s Response. DHS does not agree with District of California in Int’l Union of interpretation is unreasonable merely the commenter’s views related to the Bricklayers & Allied Craftsman v. because of its limited overlap with H–1B. Cap-Gap provision. First, both the Meese, 616 F. Supp. 1387 (N.D. Cal. Washington Alliance, No. 1:14–cv– STEM OPT extension and the Cap-Gap 1985). Response. DHS disagrees that the 00529, slip op. at 14, 28 (internal extension are of limited duration, and STEM OPT extension is an attempt to citations omitted). neither provides anything other than circumvent the requirements of the H– As for a commenter’s reference to the short-term temporary status. Second, as 1B visa program, including the cap on Int’l Union of Bricklayers case, DHS discussed above, practical training for H–1B visas. The H–1B nonimmigrant finds that decision of little relevance to international students has been classification is a unique program this rulemaking. In the cited case, the authorized for many decades, and designed to meet different policy district court’s holding was grounded in Congress has long recognized the objectives than those of the F–1 visa its finding that the admission of certain Department’s interpretation of the program or OPT. While this rule individuals as B–1 nonimmigrant student visa and related sections of the enhances the ability of F–1 students in visitors for particular construction work INA. Congress also created the H–1B STEM fields to implement and test purposes was inconsistent with section nonimmigrant classification specifically educational concepts learned in the 101(a)(15)(B) of the INA, 8 U.S.C. classroom in the context of on-the-job 1101(a)(15)(B), which expressly 81 Similarly, one commenter cited Texas v. precludes admission in B nonimmigrant United States, 787 F.3d 733, 760–61 (5th Cir. 2015) training, the rule does nothing to modify as authority for the commenter’s disagreement with the congressionally established annual status of an alien ‘‘coming for the DHS’s statement of authority in the NPRM for the H–1B visa cap nor to modify the purpose . . . of performing skilled or STEM OPT extension. That case is also inapposite longstanding policy objectives of the H– unskilled labor.’’ This case has no clear here, as it did not address the Secretary’s authority application to the STEM OPT extension, to grant work authorization for purposes of practical 1B program that generally allow U.S. training. employers to temporarily fill job where there is no express statutory bar 82 Washington Alliance, No. 1:14–cv–00529, slip openings in specialty occupations by similar to section 101(a)(15)(B) of the op. at 28.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00023 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13062 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

for specialty occupation workers with extensions based on degrees from ii. Site Visits bachelors’ degrees or higher. See INA unaccredited institutions; provides for DHS may, at its discretion, conduct Sec. 101(a)(15)(H)(i)(B) and 214(i)(l), 8 DHS site visits at STEM OPT site visits to ensure that employers and U.S.C. 1101(a)(15)(H)(i)(B) and employment sites; sets an overall limit students meet program requirements, 1184(i)(1). As noted in the recent for the amount of time a student may be including that they are complying with Washington Alliance decision, the fact unemployed during a STEM OPT assurances and that they possess the that F–1 students on OPT share certain extension; requires validation reports ability and resources to provide similarities with H–1B nonimmigrant from students, as well as reporting from structured and guided work-based workers does not render the OPT both students and employers, on the learning experiences in accordance with program invalid. See Washington student’s employment status; requires individualized Training Plans. The Alliance, No. 1:14–cv–00529, slip op. at students to provide annual evaluation combination of requiring school 14, 28. Third, Congress also created reports; and requires both students and accreditation and conducting provisions expressly allowing employers to report material changes to discretionary DHS site visits of individuals with one nonimmigrant training plans. The proposed rule employers will reduce the potential for classification to change status to a included these provisions; DHS has fraudulent use of F–1 student status different nonimmigrant classification. retained the provisions in the final rule, during the period of STEM OPT See INA Sec. 248, 8 U.S.C. 1258. There with changes and clarifications in training. is thus nothing problematic about the response to public comments. We DHS retains the site visit provisions fact that F–1 students in a period of OPT summarize these provisions and from the proposed rule, with one change may seek to remain in the United States changes below. to accommodate concerns about the in H–1B nonimmigrant status. The i. University Accreditation potential disruption associated with immigration laws are specifically unannounced site visits. DHS is designed to facilitate such shifts. See id. To qualify for a STEM OPT extension, including in this rule a requirement that And, as noted earlier, nothing about the a student’s STEM degree must be DHS will provide notice to the employer Cap-Gap provision affects eligibility for received from a U.S. educational 48 hours in advance of any site visit, H–1B status or visas, changes the institution accredited by an accrediting unless the visit is triggered by a number of such visas, or otherwise agency recognized by the Department of 83 complaint or other evidence of increases the ability of students to Education. As noted in the proposed noncompliance with the STEM OPT obtain classification as an H–1B rule, the goal of accreditation is to extension regulations, in which case nonimmigrant. ensure the quality of educational DHS reserves the right to conduct a site To the contrary, the Cap-Gap institutions and programs. Specifically, visit without notice. provision simply provides a temporary the accreditation process involves the bridge between two lawfully available periodic review of institutions and iii. Unemployment Limits periods of nonimmigrant status. As programs to determine whether they Under this rule, a student may be noted above, the problem rectified by meet established standards in the unemployed for no more than 90 days the Cap-Gap provision is the result of profession and are achieving their stated during his or her initial period of post- the misalignment between the academic educational objectives.84 completion OPT, and for no more than year and the fiscal year. Because of this DHS retains the accreditation a total of 150 days for students whose misalignment, F–1 students who were requirements from the proposed rule, OPT includes a 24-month STEM OPT the beneficiaries of H–1B petitions often with only one change in response to extension. This provision is finalized as saw their F–1 status expire before they public comments received. In cases proposed, with minor changes for could effect the change to H–1B status, where a student uses a previously clarity.85 which required them to leave the United obtained STEM degree to apply for the STEM OPT extension, the institution iv. Employment Status and Validation States and subsequently reenter on an Reporting H–1B visa. The Cap-Gap provision from which the qualifying degree was would simply remove the need to depart obtained must be accredited by an Under this rule, the employer must and subsequently reenter by extending accrediting agency recognized by the report to the relevant DSO when an the student’s F–1 status for a limited Department of Education at the time of F–1 student on a STEM OPT extension number of months until his or her H– the student’s application for the STEM terminates or otherwise leaves his or her 1B status commenced. The Cap-Gap OPT extension. This is a change from employment before the end of the provision is thus nothing more than a the proposed rule’s requirement that the authorized period of OPT and must do common-sense administrative measure institution be accredited at the time the so no later than five business days after that helps these students maintain legal degree was conferred. This change will the student leaves employment. status and avoids inconvenience to make the provision easier to administer Employers must report this information them and their employers. It is also fully by eliminating the need for DSOs to to the DSO. The contact information for consistent with existing legal authorities verify the historical accreditation status the DSO is on the student’s Form I–20, and the underlying purpose of the of other institutions. Certificate of Eligibility for practical training program. Nonimmigrant (F–1) Student Status 83 An accrediting agency is a private educational (‘‘Form I–20 Certificate of Eligibility’’), B. Enforcement, Monitoring, and association of regional or national scope that and on the student’s Form I–983, Oversight develops evaluation criteria and conducts peer evaluations of educational institutions and Training Plan for STEM OPT Students. 1. Description of Final Rule and academic programs. U.S. Department of Education Changes From NPRM Office of Postsecondary Education, ‘‘The Database 85 The 90-day aggregate period during initial post- of Accredited Postsecondary Schools and completion OPT was proposed to remain at the The final rule includes a number of Programs,’’ available at http://ope.ed.gov/ level proposed in the 2008 IFR. DHS proposed to requirements related to enforcement and accreditation. revise the aggregate maximum allowed period of 84 U.S. Department of Education Office of unemployment to 150 days for an F–1 student oversight of the STEM OPT extension Postsecondary Accreditation, ‘‘FAQs about having an approved STEM OPT extension program. To better ensure its integrity, Accreditation,’’ available at http://ope.ed.gov/ consistent with the lengthened 24-month period for this rule prohibits STEM OPT accreditation/FAQAccr.aspx. such an extension.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00024 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13063

DHS will extend OPT only for STEM meant to replace or duplicate an information while students are students employed by employers that employer’s general performance participating in OPT. agree in the Training Plan to report this appraisal process. Instead, the student 2. Public Comments and Responses information. This requirement is evaluation is intended to confirm that identical to that in the proposed rule, the student is making progress toward i. University Accreditation except that in response to public his or her training objectives. These Comment. A number of commenters comments, DHS determined to extend evaluations will help document the suggested additional restrictions on the the report period from 48 hours to five student’s progress toward the agreed- types of educational institutions that business days. As noted below, DHS upon training goals and thus better should be allowed to participate in the believes that this timeframe is more ensure that such goals are being met. STEM OPT extension program. Several realistic and more likely to result in vi. Reporting of Material Changes to or commenters asserted, for example, that consistent efforts to comply. Deviations From the Training Plan STEM OPT extensions should be The rule also enhances the ability to limited only to students from the ‘‘top track F–1 students by requiring This final rule also provides that if 50–100’’ universities in the United validation reporting every six months there are material modifications to or States. One commenter proposed that for such students on STEM OPT deviations from the Training Plan ‘‘academic programs that have been extensions. This additional requirement during the STEM OPT extension period, fined, reached a settlement, or are under is important in fulfilling the goals of the the student and employer must sign a investigation by federal or state law STEM OPT extension and in timely and modified Training Plan reflecting the enforcement agencies should be barred accurately tracking students, who are material changes, and the student must from accessing OPT visas, as should any often away from their school’s campus. file this modified Training Plan with the institutions that are subject to Specifically, this rule requires students DSO at the earliest available heightened cash monitoring.’’ who are granted STEM OPT extensions opportunity. Material changes relating Other commenters recommended to report to their DSOs every six to training for the purposes of the STEM further restrictions. Some commenters months. As part of such reporting, OPT extension include, but are not suggested that accreditation alone was students must confirm the validity of limited to, any change of Employer their SEVIS information, including legal Identification Number (EIN) resulting insufficient to ensure the quality of name, address, employer name and from a corporate restructuring; 86 any degree programs and that additional address, and the status of current reduction in compensation from the quality standards should be adopted for employment. This provision is largely amount previously submitted on the STEM OPT extensions. Other finalized as proposed, but with some Training Plan that is not the result of a commenters stated that students should minor edits for clarity. The text has been reduction in hours worked; and any be ineligible for STEM OPT extensions reorganized to clearly state the types of significant decrease in the hours per based on STEM degrees earned at for- events that require a validation report week that a student will engage in the profit institutions. One commenter and to clearly state that the requirement STEM training opportunity, including a stated that for-profit institutions had to submit such reports starts on the date decrease below the 20-hour minimum been abusing the OPT system and the STEM OPT extension begins and employment level per week that would should no longer be able to place ends when the student’s F–1 status violate the requirements of the STEM students in OPT positions. Another expires or the 24-month OPT extension OPT extension. commenter asserted that prohibiting for- concludes, whichever occurs first. This aspect of the final rule represents profit institutions from participating a clarification of a proposed provision would eliminate the incentive of such v. Periodic Student Evaluations in the NPRM. Commenters on the institutions to recruit F–1 students As compared to the proposed rule, proposed rule requested additional under false pretenses. One commenter and in response to public comments clarity with respect to what types of stated that the Administration is seeking received, the final rule makes a number changes to or deviations from the to curb abuses by for-profit institutions of changes and clarifications to the training plan would be considered in other areas, and that such schools student evaluation requirement. First, ‘‘material’’ and would therefore require should be precluded from placing DHS has changed the frequency of the the submission of a modified plan to the students in OPT, or, at a minimum, evaluation requirement. DHS proposed DSO. As discussed in further detail should be subject to heightened requiring an evaluation every six below, DHS is departing from the oversight. months, but is reducing the frequency to proposal in response to public Response. DHS declines to adopt the every 12 months. This change is comments. suggested restrictions. DHS, for intended to better reflect employer DHS further notes that ICE is working example, does not believe it fair or practices where annual reviews are toward technology that would allow appropriate to limit participation to an standard, allowing students and students to update their basic arbitrary number of accredited employers to better align the evaluations information in SEVIS without gaining institutions and their students. required under this rule with current access to restricted areas of the system Although DHS has chosen to set limits evaluation cycles. Second, DHS is where student access would be on participating institutions and degree providing additional flexibility for inappropriate. Once ICE implements programs by requiring accreditation, employer participation in the evaluation this technology, students will have an accreditation determinations are made process. Although the NPRM would increased ability to maintain their own by accrediting entities that are have required the student’s immediate records. This would also decrease the recognized by the Department of supervisor to sign the evaluation, the workload on DSOs, who would no Education as having expertise in this final rule allows any appropriate longer be required to update student area. DHS itself does not have the individual in the employer’s expertise to look behind the quality of organization with signatory authority to 86 Changes of employers or EINs that are not assessments made by such entities, nor simply a consequence of a corporate restructuring sign the evaluations that the student require filing of a new, rather than a modified, does it have the expertise necessary to will submit to the DSO. Third, DHS Training Plan by the new employer. See 8 CFR further compare degree programs among clarifies that this evaluation is not 214.2(f)(10)(ii)(C)(7)(iv). accredited institutions. Notably, the

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00025 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13064 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00026 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13065

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00027 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13066 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

Training Plan requirements are overly intrusive’’ than site visits. The or that the allowance for a short period vague and unenforceable. The program commenters suggested that if the of unemployment should be eliminated requires employers to provide detailed information could be verified through altogether. DHS continues to believe information regarding the nature of the these other means, there would then be that authorizing a limited period for training to be provided and the no need to conduct a time-consuming possible unemployment during a measures to be used to ensure that the site visit. student’s STEM OPT extension is both goals of such training are met. Form I– Response. DHS expects that it will use fair and reasonable, and consistent with 983, Training Plan for STEM OPT all available mechanisms to ensure the stated aims and objectives of the Students, which will be used to keep compliance with STEM OPT extensions, STEM OPT extension. Moreover, the track of this information, requires including contacting employers, reporting requirement, with which a employers to provide the information students, or DSOs by phone or email to student must comply during any period necessary to verify compliance. verify or obtain information. The of unemployment, effectively addresses Comment. Several commenters Department, however, reserves the right security-related concerns by ensuring requested that DHS further specify to conduct site visits of employers or that DHS remains apprised of the requirements and procedures related to schools to ensure full compliance with student’s location and status. site visits. Such commenters expressed program requirements. The Department DHS also believes that limiting concern with the fact that the regulation believes that the possibility that such unemployment during the STEM OPT does not specify: The manner in which site visits may be conducted to ensure extension period is necessary to support a site visit would be conducted; the compliance, including on an the program’s purpose and integrity. manner in which information gained in unannounced basis, will further The rationale for the program is to the course of a site visit would be incentivize compliance with the extend status to facilitate practical stored, shared, or relied upon by the requirements of this rule. training. Allowing an unlimited period government; the manner in which a of unemployment would thus iii. Unemployment Limits company or individual could correct or undermine the purpose for the update information gained through a Comment. Commenters asked DHS to extension and increase the opportunity site visit; or the manner in which reconsider and adjust the amount of for fraud and abuse. Moreover, the confidential business and personal time a student may be unemployed over limited period of unemployment does information will be protected during a the course of their STEM OPT not preclude a student who is unhappy site visit. extension. Others asked that DHS not with his or her current employer (for Response. DHS clarifies that site visits allow for any unemployment while a whatever reason) from effectively will be conducted in a manner that student is on a STEM OPT extension. searching for a new practical training balances the burden to the employer One commenter suggested that an opportunity. Under this rule, the with the need to ensure compliance unemployment period is inconsistent student may seek such a new with the program. This means that with student status and with the opportunity either while still employed while ICE will physically inspect some training program component of OPT. with his or her current employer or in sites, it also may request information The commenter stated that the period of unemployment provided concerning compliance through email or unemployment would be an by this rule. Nothing in the rule by phone. The information obtained unsupervised period inconsistent with prevents students from switching during a site visit will be stored and DHS’ security duties and would run employers or from being unemployed maintained by ICE. DHS will notify an contrary to protections in place for U.S. for a temporary period, as long as they employer 48 hours before conducting a workers. complete and submit a new training site visit unless DHS has received a By contrast, another commenter plan and comply with all reporting complaint about the employer or has recommended that DHS allow unlimited requirements. other evidence of non-compliance, in unemployment during the STEM OPT Finally, students who believe they are which case DHS reserves the right to extension period. The commenter stated being exploited or abused by their conduct a site visit without notice. If as that limiting the unemployment period employers in any manner have several a result of a site visit ICE determines will have the effect of tying students mechanisms to address their concerns, that an employer or student needs to more closely to one employer and including reporting the conduct to their submit updated or corrected limiting their ability to change jobs. The DSO or the SEVP Response Center, or information, ICE will generally request commenter was concerned this would seeking legal redress in appropriate the information in writing, with specific increase the opportunity for student cases. DHS also provides information instructions on how the employer or exploitation. A different commenter about studying in the United States on student must submit the information. suggested that DHS allow STEM OPT the DHS Study in the States Web site, Federal law imposes protections on students to leave their initial employer which links to State Department information obtained by DHS in during the 24-month extension, so as to information for nonimmigrants, connection with site visits, and the allow students greater mobility and including a ‘‘Rights, Protections and Department will comply with those avoid potential exploitation. One Resources’’ pamphlet.87 DHS requirements. Applicable federal laws commenter stated that the lack of encourages all students to seek include, but are not limited to, the mobility and other protections for appropriate redress and emphasizes that Privacy Act, the Freedom of Information individuals participating in OPT could such action will not impact their F–1 Act, and the Federal Information lead those students who are worried status. Security Management Act. about going out of status to ‘‘collude’’ Comment. Some commenters stated Comment. Some commenters stated with exploitative employers to cover up that students should not be penalized that ICE, prior to initiating a site visit, violations of the safeguards for U.S. should attempt to verify program workers. 87 See DHS, Study in the States, available at compliance requirements by Response. DHS respectfully disagrees https://studyinthestates.dhs.gov/what-is-a- commission-based-recruiter; U.S. Department of communicating with the student and with commenters’ suggestions that the State, Rights, Protections and Resources Pamphlet employer via telephone and email, as amount of time a student may be (Dec. 22, 2014), available at http://1.usa.gov/ these means of communication are ‘‘less unemployed under this rule is too long, 1G0Nt5X.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00028 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13067

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00029 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13068 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00030 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13069

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00031 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13070 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

material change, but a change in would constitute a violation of the their authorized periods of stay, and supervisor standing alone is not student’s F–1 status. suggested that making schools material. Comment. One commenter responsible for former students would Because DHS expects that not all recommended that DHS require that be unrealistic and would create a changes in supervisor would be changes in compensation be reported national security issue. Another material, DHS has revised the Training only when a student’s salary has been commenter asked how DHS would keep Plan form to replace the reference to a lowered. The commenter stated that if track of all students participating in student’s supervisor with a reference to this change were adopted, it would STEM OPT. Some commenters the ‘‘Official Representing the eliminate a significant burden on suggested that DHS adopt and publish a Employer.’’ Along with the changes students and DSOs by eliminating the public list of program violators, discussed above, this change aims to need to report when a student receives identifying those companies and produce flexibility for employers in an annual cost-of-living increase as part universities found to be abusing the completing the requisite sections of the of the employer’s overall compensation STEM OPT extension or otherwise form and further clarifies that the program. The commenter stated that this failing to comply with program Training Plan would not require would also avoid confusion over requirements. One commenter requested updating solely because the student is whether to report every time the student information regarding actions DHS has assigned new project supervision. receives a raise or stock options, or taken to address problems identified by Finally, DHS declines to adopt the when other forms of non-cash the February 2014 GAO report on the recommendation to make the student compensation are added to the student’s OPT program. solely responsible for reporting material compensation package. Response. DHS believes it has made changes, as the employer should be Response. DHS understands the important improvements to the accountable for the Training Plan that it commenter’s concern that the proposed oversight of the STEM OPT extension helped prepare. This joint employer- rule lacked clarity on when with this rule. In addition to student requirement strengthens DHS’s compensation changes were required to maintaining the validation reporting ability to track F–1 nonimmigrants and be submitted through the Training Plan requirement, this rule establishes an is essential to monitoring employer for STEM OPT Students. To avoid any interlocking set of requirements that compliance, maintaining strong U.S. confusion, the final rule clearly states facilitate DHS enforcement (site visits), worker safeguards, and ensuring that employers are responsible for permit DHS to better monitor students continuing employer-accountability. reporting only material changes to the on STEM OPT (evaluations, notification Comment. A university stated that Training Plan, which will include of material changes, and required notice material changes or deviations to the changes to the compensation reporting if a student leaves an employer or fails original Training Plan will be self- field of the form, and are required to do to show up for five consecutive business reported events and that the DSO will so at the earliest available opportunity. days without the employer’s consent), have no other way of knowing if or However, a compensation change and protect the integrity of the program when they occur. The commenter qualifies as material only when it is a (accreditation requirements and suggested that if the Department simply reduction in compensation from the unemployment limits). These seeks to have this information on file, amount previously submitted on the requirements are intended to help DHS and there is no role for the DSO other Training Plan that is not the result of a track F–1 nonimmigrants and better than to collect the information, then reduction in hours worked. An increase ensure their departure. See, e.g., 8 such information should be submitted in compensation, on its own, does not U.S.C. 1103, 1184, 1372. All of these are directly to DHS by the employer or constitute a material change that must discussed in detail above. student. The commenter further stated be reported. But such an increase may DHS believes that the enforcement, that the proposed rule was silent constitute a material change in the monitoring, and oversight provisions of regarding DSO responsibilities over totality of the circumstances, such as this rule provide the necessary tracking modified Training Plans, and that there when the increase is not commensurate resources and mechanisms to appear to be no ‘‘teeth’’ for addressing with an increase in compensation appropriately monitor compliance and a student’s failure to report these afforded to the employer’s similarly to enforce the law against violators. For changes. situated U.S. workers. these reasons, the Department declines Response. DHS understands that to adopt the suggestion to publish a list DSOs have a limited role with respect vii. General Comments on DHS of program violators. to receiving and storing material Enforcement, Monitoring, and Oversight With regard to the 2014 GAO Report, changes to, or deviations from, Comment. DHS received a number of DHS first notes that the report and its submitted Training Plans. DHS is comments related to the Department’s conclusions concerned individuals developing a portal in SEVIS to allow ability to track F–1 students on STEM beyond the limited population of STEM students to provide their own OPT extensions. One commenter, for OPT students, who represent a small information, including confirmation of example, cited a February 2014 report subset of the total F–1 population modified Training Plans. At this time, from the Government Accountability engaging in authorized employment in however, the DSO’s role in this regard Office (GAO) that highlighted the United States.89 The report is thus remains essential to the effective difficulties experienced by the much broader in scope than are the administration of the STEM OPT Department in tracking F–1 students regulatory changes DHS has considered extension. Consequently, the DSO at the engaging in practical training.88 The with this rulemaking. Nonetheless, DHS student’s school of most recent commenter expressed concern over the believes it has adequately addressed enrollment remains responsible for ability of nonimmigrants to overstay many aspects of the GAO report providing SEVP with access to the impacting STEM OPT extensions. DHS relevant information described in this 88 The commenter referred to GAO, ‘‘Student and section. This rule also makes clear that Exchange Visitor Program: DHS Needs to Assess 89 As of September 16, 2015, over 34,000 students it is the student’s responsibility to Risks and Strengthen Oversight of Foreign Students were in the United States on a STEM OPT with Employment Authorization,’’ Feb. 2014, extension, as compared to more than 1.2 million provide changes in information to his or available at http://www.gao.gov/assets/670/ international students studying in the United her DSO, and that a failure to do so 661192.pdf. States.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00032 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13071

has taken measures or is finalizing Other commenters expressed commenter described the reporting action regarding seven concerns about consulting firms that requirements as ‘‘self-reporting events,’’ recommendations included in the may seek to exploit F–1 students by noting that DSOs will have no way of report. For example, DHS has completed underpaying them during their STEM monitoring students or knowing about or is in the process of finalizing the OPT extension. One commenter asked violations if they are not reported to the following: DHS to implement background checks DSOs. That commenter suggested that • Identifying and addressing risks in for all STEM OPT students before they ‘‘[t]here should be no repercussions to the OPT program through interagency accept employment opportunities. the school or the DSO for not getting coordination, including using relevant Similarly, another commenter suggested these data from the student or information from ICE’s Counterterrorism that DHS include annual in-person employer.’’ Similarly, another and Criminal Exploitation Unit and reissuance of identification cards with commenter voiced concerns about field offices; photos and fingerprints among measures whether there will be consequences for • Requiring that F–1 OPT students, required for ‘‘all OPT students.’’ DSOs if employers or students fail to both still in school and who have Response. As noted above, this rule meet their reporting obligations under completed their education, provide includes multiple requirements to the proposed rule, how DHS will DSOs with employer information, ensure strong program oversight. DHS monitor employers’ and students’ including their employer’s name and closely monitors the STEM OPT compliance with the proposed rule’s address, so that DSOs can record that extension program, including F–1 reporting requirements, and whether information in SEVIS; students and schools certified to enroll students will face consequences if • Developing and distributing such students. DHS takes claims of employers fail to timely report required guidance to DSOs for determining fraud and abuse very seriously and information. whether a practical training opportunity encourages all individuals to contact Response. DHS respectfully disagrees relates to a student’s area of study, and DHS if they have information regarding with the commenters’ statements requiring that DSOs provide information any individual or employer that he or concerning available consequences for in SEVIS to help ensure that the she believes is engaging in fraud or non-compliant students or employers. regulatory requirement is met; abuse. Individuals possessing such The rule reflects ICE’s procedures for • Requiring that students report to information are encouraged to submit it monitoring nonimmigrant students and DSOs, and that DSOs record in SEVIS, online at https://www.ice.gov/webform/ provides for investigating employers’ hsi-tip-form. Moreover, the rule requires students’ initial date of employment and compliance with the rule’s employers to sign the Training Plan and any period of unemployment; requirements, including all reporting comply with all reporting requirements, • Developing and implementing a and recordkeeping obligations, in while providing for site visits to process for SEVP to inform USCIS when accordance with SEVP’s authority to independently verify compliance. These students approved for OPT have track and monitor students. Moreover, additional requirements will mitigate transferred schools; the rule clarifies that employers will be • the potential for fraud and abuse of the monitored consistent with the site visit Developing guidance to DSOs and F–1 visa program and STEM OPT USCIS regarding the definition of a full provisions, and that DHS has the ability extension. to deny STEM OPT extensions with academic year for the purposes of Regarding the request for DHS to recommending and authorizing OPT; employers that DHS determines have implement background checks on STEM failed to comply with the regulations. and OPT students, DHS confirms that this • With regard to STEM OPT students, the Developing and implementing a process is already in place. USCIS rule also provides for serious mechanism to monitor available conducts background checks on all consequences in instances of non- information in SEVIS to determine if STEM OPT students before rendering a compliance. For example, the rule international students are accruing more final decision on their Form I–765, specifies that compliance with reporting OPT than allowed by DHS regulation. Application for Employment requirements is required to maintain F– Although DHS is always interested in Authorization. DHS does not believe the 1 status. See 8 CFR 214.2(f)(12)(i)–(ii). ways to improve the security and commenters’ suggested additional Accordingly, a student’s failure to efficacy of its programs, the Department security measures (such as an annual ID comply with reporting obligations will believes that the above-referenced card reissuance requirement) are result in a loss of F–1 status. enforcement measures, as well as those necessary or appropriate at this time.90 described in this final rule, are thorough Comment. Some commenters stated Furthermore, although DHS expects and sufficient to address the concerns that the proposed rule was silent on the certified schools and DSOs to meet their discussed in the GAO report that relate types of penalties that students and regulatory obligations, including to STEM OPT extensions. employers may face for non-compliance updating a student’s record to reflect Comment. Commenters expressed with reporting requirements. Other reported changes for the duration of concern that many F–1 students on commenters expressed concern that OPT, DHS does not intend to pursue STEM OPT extensions work in fields DSOs may be held responsible if enforcement actions against schools or unrelated to their areas of study and students and employers fail to comply their officials for the reporting failures falsify work experience. Some with those requirements. One of third parties. commenters stated that many employers C. Qualifying F–1 Nonimmigrants fabricate work documents in an attempt 90 DHS notes that several commenters suggested to show that a work experience relates that DHS implement new requirements for ‘‘all OPT 1. Description of Final Rule and students.’’ DHS believes these comments go beyond Changes From NPRM to a student’s field of study. Some the scope of regulatory changes DHS has considered commenters requested that DHS take with this rulemaking. However, DHS understands This rule allows only certain F–1 additional steps to ensure that F–1 and appreciates the commenters’ concerns. As nonimmigrants to receive STEM OPT students do not work in unrelated stated previously, the rule implements significant extensions. The rule requires the measures to strengthen program oversight and to fields, such as in restaurants, motels, gas mitigate fraud in the STEM OPT extension. DHS student’s STEM OPT opportunity to be stations or similar places of may consider extending these measures more directly related to the student’s STEM employment. broadly in a future rulemaking. degree; defines which fields DHS

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00033 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13072 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

considers to be ‘‘STEM fields’’ for ‘‘related fields’’ in response to qualifies the student for such extension, purposes of the extension; and allows comments about the clarity of the including a previously obtained STEM students to use a previously obtained proposed definition. degree. STEM degree as a basis for a STEM OPT DHS will maintain a complete list of fields that DHS has determined fall iv. Prior STEM Degrees—Additional extension. The rule effectively prohibits Eligibility Requirements students from using the STEM OPT within the regulatory definition of extension to work in a volunteer ‘‘STEM field.’’ This list is known as the This final rule includes a number of capacity, among other requirements to STEM Designated Degree Program List requirements intended to ensure the ensure appropriate oversight and (‘‘STEM list’’). DHS may publish educational benefit of a STEM OPT training in connection with the updates to the STEM list in the Federal extension based on a previously extension. Finally, this rule clarifies that Register. A clear definition of the types obtained STEM degree. First, for a a student may qualify for a STEM OPT of degree fields that DHS considers student relying on a previously obtained extension notwithstanding that the ‘‘STEM fields’’ for purposes of the degree, the student’s most recent degree student has yet to complete a thesis STEM OPT extension will more must also be from an accredited requirement or equivalent, so long as effectively facilitate the process for institution, and the student’s practical the thesis requirement or equivalent is altering categories contained within the training opportunity must be directly the only degree requirement still STEM list. related to the previously obtained STEM outstanding at the time of application In the proposed rule, DHS advised degree. Second, for a previously (although this is not an available option commenters that it was considering obtained degree to qualify as the basis when using a previously obtained STEM future revisions of the STEM list to for a STEM OPT extension, the degree degree). The proposed rule included include certain degrees listed within the must have been received within the 10 most of these provisions; the final rule two-digit series for Agriculture, years preceding the student’s STEM makes changes and clarifications in Agriculture Operations, and Related OPT application date. response to public comments. We Sciences; Computer and Information As previously noted, the final rule summarize these provisions and Sciences and Support Services; clarifies that the prior degree cannot changes below. Engineering; Engineering Technologies have been conferred via an overseas and Engineering-Related Fields; campus. The institution that conferred i. Relationship of STEM OPT Biological and Biomedical Sciences; the prior degree must be accredited and Opportunity to the Student’s Degree Mathematics and Statistics; and SEVP certified at the time the DSO As noted above, under this final rule, Physical Sciences. As noted in the recommends the student for the STEM the student’s proposed STEM OPT comment summary below, DHS OPT application.92 opportunity must be directly related to received a number of recommendations for fields to add to the STEM list and v. Volunteering and Bona Fide the student’s STEM degree. Like OPT Employer-Employee Relationships generally, a STEM OPT extension is at one recommendation to remove a field its core a continuation of the student’s from the list. As discussed below DHS The final rule clarifies issues relating program of study in a work has revised the list in response to the to various types of practical training environment. This provision is finalized comments received; the final list is scenarios and whether such scenarios without change. available in the docket for this qualify an F–1 student for a STEM OPT rulemaking. Consistent with past extension. The rule specifically clarifies ii. Limitation to STEM Degrees Only practice, DHS will continue to accept that a student may not receive a STEM This final rule limits eligibility for the for consideration suggested changes to OPT extension for a volunteer STEM OPT extension to those the STEM list at [email protected]. opportunity. The rule also requires that a student must have a bona fide qualifying students who have completed iii. Prior STEM Degrees a degree in a STEM field. The degree employer-employee relationship with The rule allows students to use a that serves as the basis for the STEM an employer to obtain a STEM OPT previously obtained and directly related extension. In response to comments OPT extension must be a bachelor’s, STEM degree from an accredited school master’s, or doctoral degree. Under this received, DHS clarifies that students as a basis to apply for a STEM OPT may be employed by start-up rule, a ‘‘STEM field’’ is a field included extension. This provision makes the in the Department of Education’s CIP businesses, but all regulatory STEM OPT extension available to requirements must be met and the taxonomy within the 2-digit series students who have significant prior containing engineering, biological student may not provide employer background in STEM but who are attestations on his or her own behalf. sciences, mathematics, and physical currently engaging in practical training sciences, or a related field. In general, that has been authorized based on their vi. Thesis Requirement related fields will include fields study towards a non-STEM degree. The The final rule clarifies that F–1 involving research, innovation, or extension is available only to those students who have completed all other development of new technologies using students who seek to develop and course requirements for their STEM engineering, mathematics, computer utilize STEM skills from their prior degree may be eligible for a STEM OPT science, or natural sciences (including STEM degree during the STEM OPT extension notwithstanding the physical, biological, and agricultural extension. A DSO at the student’s sciences). This definition is drawn in school of most recent enrollment is 92 This final rule also clarifies that a qualifying, part from a definition developed by the responsible for certifying a prior STEM previously obtained degree provides eligibility for Department of Education’s National the STEM OPT extension so long as the educational degree, which must have been obtained institution that conferred the degree is accredited at Center for Education Statistics in the ten years prior to the DSO (NCES).91 DHS added the definition of the time of the student’s application for the recommendation. In addition, the extension. As discussed more fully below, DHS regulatory text clarifies that the practical does not have full access to historical information 91 U.S. Department of Education, NCES, Institute on accreditation for all U.S. schools. An of Education Sciences, ‘‘Stats in Brief’’ (July 2009), training opportunity that is the basis for organization’s current status as accredited available at http://nces.ed.gov/pubs2009/ the 24-month STEM OPT extension nonetheless serves as a signal of the quality of the 2009161.pdf. must directly relate to the degree that education that the organization offers.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00034 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13073

continuing need to complete the thesis student’s academic studies and demand of STEM workers, and the fact requirement or equivalent for their enhances the knowledge acquired that labor needs are in constant flux, STEM degree. DHS believes that this during those studies. The purpose of the DHS has concluded that it would not be flexibility is consistent with DHS’s rule is not to give students unlimited administratively feasible to limit STEM historical interpretation of the employment opportunities. At the same OPT extensions based on industry- regulatory provisions governing STEM time, the ‘‘directly related’’ standard specific needs that would be complex OPT extensions. This exception, allows sufficient flexibility to give F–1 and difficult to ascertain objectively. however, does not apply with respect to students a range of options when DHS declines to adopt the suggestion by a previously earned STEM degree if the choosing how to apply and enhance the commenter. student seeks to base the STEM their acquired knowledge in work Comment. Another comment extension on such a degree. settings. DHS recognizes that the suggested that because the DHS- knowledge acquired when earning a approved STEM list is actually a list of 2. Public Comments and Responses STEM degree typically can be applied in major areas (i.e., fields) of study, DHS i. Relationship of STEM OPT a range of related fields, and the should amend the proposed definition Opportunity to the Student’s Degree Department does not seek to narrow for the type of STEM degree that would Comment. DHS received a number of such options for students; rather, this qualify a student for a STEM OPT comments regarding the proposed rule requires that the practical training extension to refer to ‘‘program relationship between students’ degrees opportunity be directly related to the categories’’ instead of ‘‘degree and their practical training F–1 student’s field of study. Limiting programs.’’ The commenter added that opportunities to the exact field of study opportunities. Several commenters the reference to ‘‘program categories’’ as named on the degree would create an agreed with DHS that the rule should would be more consistent with other unnecessary and artificial distinction, require a direct relationship between the parts of the regulation that also use that resulting in fewer opportunities for student’s qualifying STEM degree and term. STEM OPT students. Response. DHS agrees that the the practical training opportunity. One DHS notes that the Training Plan commenter indicated that the proposed definition could be confusing required for a STEM OPT extension and has amended the regulatory text Department needed to be flexible in under this rule includes an entry for evaluating such relationships, accordingly. The final rule now articulating how the practical training provides that the degree that is the basis particularly because of rapid changes in opportunity is directly related to the for the STEM OPT extension must be a certain STEM fields. Specifically, the student’s field of study. DHS will bachelor’s, master’s, or doctoral degree commenter stated that ‘‘[i]n assessing carefully consider this explanation, in ‘‘a field’’ determined by the whether a STEM degree relates to a among other relevant evidence, when Secretary, or his or her designee, to particular position, it is important for evaluating the relationship between the qualify within a science, technology, DHS to be open to employers’ practical training opportunity and the engineering, or mathematics field. explanations regarding the nexus student’s degree. between the STEM degree field and the Comment. One commenter stated that Comment. Several commenters employment opportunity.’’ Other STEM OPT extensions should be requested that the STEM OPT extension commenters suggested that STEM OPT granted based on the needs of U.S. program be broadened to include non- students should work only in the exact industries. Specifically, the commenter STEM degrees. For example, one fields in which they earned their recommended that DHS make commenter remarked that it ‘‘sometimes degrees, rather than in other related extensions available to F–1 students encounters individuals with excellent fields where their skills may be valued who have earned degrees in fields that technical credentials whose decision to by employers. One commenter opposed have a demonstrated need for workers, obtain an MBA or other non-STEM the requirement that work be directly rather than to all fields on the STEM advanced degrees precludes them from related to the degree, especially in list. continuing employment in the United regard to prior STEM degrees. The Response. The primary purpose of States due to an inability to access commenter suggested that eliminating this rule is to expand upon the STEM–OPT.’’ Other commenters the nexus requirement would create academic learning of F–1 students in similarly suggested that STEM OPT greater opportunities for STEM OPT STEM fields through practical training, extensions be available to students with students. not to supply STEM workers or address non-STEM degrees by citing to the Response. DHS does not believe labor shortages. Moreover, as noted changing nature of higher education and further changes to the ‘‘directly related’’ previously, the NSF has reviewed the the need for increased experiential standard are necessary or appropriate. body of research in this area and learning in other fields. One commenter DHS disagrees, on the one hand, with concluded that there is no suggested that DHS should create a comments recommending that STEM straightforward answer on whether process for expanding practical training OPT extensions only be allowed where there is a surplus or shortage of STEM opportunities for foreign students in the practical training will be in the exact workers.93 Although it appears non-STEM fields. field in which the F–1 student earned axiomatic that at any given time one Response. An expansion of practical his or her degree. DHS also disagrees, on industry may need workers more than training to non-STEM degrees would be the other hand, with comments another, the NSF has also found that outside the scope of this rulemaking. In recommending the elimination of any labor needs in STEM fields are 2015, there were more than 1.2 million connection between the degree and the determined by factors other than international students studying in the practical training opportunity. DHS industry, including level of education, United States, but only approximately believes that the rule strikes the right training, and geographic location.94 Due 34,000 students on STEM OPT balance between these two positions. to the complex set of factors that extensions. DHS did not propose to The requirement that the practical combine to affect the supply and authorize an extension of OPT for the training opportunity be directly related entire international student population, to the student’s degree ensures that the 93 See supra note 52. and will not authorize such an opportunity is an extension of the 94 Id. extension in this rule.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00035 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13074 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

Moreover, as noted in the proposed within the proposed definition of natural sciences (including physical rule, DHS received similar comments in ‘‘STEM field.’’ Some commenters stated sciences and biological/agricultural response to the 2008 IFR creating the that DHS should not base its definition sciences), engineering/engineering 17-month extension for STEM of the term on the NCES definition technologies, and computer/information graduates. DHS has taken these alone.96 Commenters stated that the sciences). To address this concern, the concerns into consideration in crafting Department of Education originally commenter suggested that DHS include this rule, and the Department developed this definition in order to an innovation or competitiveness- determined that extending OPT is define the scope of a study of related criterion as a factor in selecting particularly appropriate for STEM educational trends related to students STEM fields for inclusion on the list. students because of the specific nature who pursue and complete STEM Response. DHS believes the NCES of their studies and fields and the degrees. One commenter argued that definition for ‘‘STEM field’’ provides a increasing need for enhancement of repurposing this categorization for the sound starting point for the definition of STEM skill application outside of the STEM OPT extension would produce an that term in this rule. First, the NCES classroom. DHS also found, as noted unnecessarily narrow definition of definition draws on the Department of previously, that unlike post-degree ‘‘STEM field’’ for the STEM OPT Education’s expertise in the area of training in many non-STEM fields, extension. higher education. Second, the NCES training in STEM fields often involves Similarly, another commenter advised definition identifies STEM fields using multi-year research projects 95 as well as that the NCES description of STEM CIP terminology, which is widely used multi-year grants from institutions such fields ‘‘is too narrow to capture graduate by U.S. institutions of higher education as the NSF. Although DHS recognizes level STEM fields, especially those and provides a straightforward and that there may be some non-STEM fields being pursued by students who obtained objective measure by which DSOs and in which a student could benefit from their baccalaureate-level education adjudicators can identify STEM fields of increased practical training, the outside the United States, and who have study. Consistent with the proposed Department believes the current 12- come here for more specialized STEM rule, DHS has determined that four month post-completion OPT period is education.’’ Another commenter stated areas are core STEM fields and will list generally sufficient for such fields. For that the proposed rule’s definition these four areas at the two-digit CIP these reasons, DHS is limiting the STEM would ‘‘create[] a static definition of code level. As a result, any new OPT extension to STEM fields at this STEM fields that fails to provide the additions to those areas will time. flexibility to adapt to the latest automatically be included on the STEM Finally, DHS also notes that the rule innovations and discoveries in STEM.’’ list. These four areas are: Engineering does expand the availability of STEM The commenter suggested that DHS (CIP code 14), Biological and OPT extensions to certain STEM clarify that it may add new CIP codes to Biomedical Sciences (CIP code 26), students with advanced degrees in non- the list beyond the summary groups Mathematics and Statistics (CIP code STEM fields. Under the rule, a student specifically identified in the proposed 27), and Physical Sciences (CIP code who earns a STEM degree and then goes regulatory text.97 40). DHS also recognizes that some STEM on to earn a non-STEM advanced Another commenter stated that DHS’s fields of study may fall outside the degree, such as a Master of Business definition of ‘‘STEM field’’ differs from summary groups (or series) identified in Administration (MBA), may apply for a the NCES definition of the term in that the NCES definition. As many STEM OPT extension following the DHS has included ‘‘related fields’’ in its commenters noted, the proposed rule MBA so long as the practical training definition. The commenter believed that defined ‘‘STEM field’’ to also include opportunity is directly related to the DHS’s expanded definition would lead prior STEM degree. fields of study related to mathematics, to requests for DHS to include in the natural sciences (including physical ii. Definition of ‘‘STEM Field’’ and the new STEM list a number of fields that sciences, biological, and agricultural STEM List DHS had included in prior versions of sciences), engineering and engineering the STEM list, but that did not fall Comment. Many commenters technologies, and computer and within the summary groups that DHS supported DHS’s proposal to designate information sciences. The ‘‘related identified in the NPRM (mathematics, CIP codes in the STEM list at the two- fields’’ language in the STEM definition means that DHS may consider a degree digit level for the summary groups (or 96 The NCES definition of ‘‘STEM fields’’ includes series) containing mathematics, natural ‘‘mathematics; natural sciences (including physical to be in a STEM field even if not within sciences (including physical sciences sciences and biological/agricultural sciences); the CIP two-digit series cited in the rule, and biological/agricultural sciences), engineering/engineering technologies; and and it authorizes DHS to designate CIP computer/information sciences.’’ U.S. Department codes meeting the definition at the engineering/engineering technologies, of Education, NCES, Institute of Education and computer/information sciences. Sciences, ‘‘Stats in Brief’’ 2 (July 2009), available at two-, four-, or six-digit level. DHS Commenters stated that this approach http://nces.ed.gov/pubs2009/2009161.pdf. believes that the clarification provided would provide important clarity to the 97 One comment suggested that DHS clarify how here, coupled with the STEM list itself, public, as well as flexibility as STEM it will map CIP codes to each of the listed summary are sufficient to address any concern groups if it retains these summary groups because, about qualifying STEM degrees and fields change. according to the commenter, neither the NPRM nor Many commenters emphasized the the Department of Education document provide therefore declines to amend the importance of also allowing STEM OPT enough detail to compare the proposed list to the regulatory text. extensions for certain students who current list, or to provide feedback on the scope of DHS agrees, however, with comments the proposed change. Another commenter asked suggesting that the ‘‘related fields’’ studied in fields that are not classified whether DHS intended to retain fields on the list if they fell outside of the summary groups for criterion alone may provide insufficient 95 Many STEM OPT practical training mathematics, natural sciences, engineering/ guidance and predictability to opportunities are research related, as indicated by engineering technologies, and computer/ adjudicators and the public. Consistent the fact that the employer that retains the most information sciences. As noted above, as part of the with these commenters’ suggestions and STEM OPT students is the University of California 2015 NPRM, DHS offered for public comment the system and that two other universities are among then-current STEM Designated Degree Program List, the basis of the STEM OPT extension, the top six of such employers (Johns Hopkins and specifically identified which codes it was DHS has revised the regulatory text to University and Harvard University). considering designating at the two-digit level. clarify that in general, related fields will

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00036 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13075

include fields involving research, include ‘‘certain essential fields in the 26.0908), Neuroscience (CIP code innovation, or development of new health care and business sectors,’’ 26.1501), Pharmacoeconomics/ technologies using engineering, without specifically identifying the Pharmaceutical Economics (CIP code mathematics, computer science, or specific fields they considered 51.2007), Industrial and Physical natural sciences (including physical, ‘‘essential.’’ A commenter Pharmacy and Cosmetic Sciences (CIP biological, and agricultural sciences). recommended adding to the STEM list code 51.2009), Pharmaceutical Sciences DHS intends to list any such ‘‘related programs with CIP codes within the (CIP code 51.2010),98 and Geographic fields’’ at the 6-digit level. summary groups (or series) for Business Information Science and Cartography Comment. DHS received a number of Management, Marketing, and Related (CIP code 45.0702). comments related to the process for Support Services (CIP code 52) and With respect to suggestions to include updating the STEM list. One commenter Homeland Security, Law Enforcement, certain accounting degree programs, recommended that DHS publish a list Firefighting and Related Protective DHS notes that accounting is not and provide for notice and comment Services (CIP code 43). Other generally recognized as a STEM field regarding any fields DHS intends to add commenters recommended specific and does not involve research, or remove. Other commenters proposed degrees for DHS to include in the STEM innovation, or development of new that, in order to retain flexibility to OPT extension. These proposed fields of technologies using engineering, adapt the definition of eligible STEM study covered a wide range of subjects mathematics, computer science, or fields to an innovative economy, DHS including patient-care fields such as natural sciences (including physical, should make additions to the list nursing and dental sciences, business biological, and agricultural sciences). through publication of updates in the administration, exercise sciences, DHS is thus not generally including Federal Register but without providing neuroscience, pharmaceuticals, accounting degrees on the STEM List. for notice and comment. Another economics, accounting, and geography. DHS also disagrees with the suggestion commenter asked DHS ‘‘to create a Some commenters stated that ‘‘financial to prohibit eligibility based on system whereby applications to add engineering’’ and ‘‘quantitative finance’’ ‘‘financial engineering’’ and fields to the STEM list can be made and (fields that are potentially encompassed ‘‘quantitative finance’’ degrees. acted upon quickly’’ but that ‘‘DHS within the CIP code for Financial Financial Mathematics is a very provide a notice and comment period Mathematics) should not be on the list specialized field that involves utilizing before eliminating specific fields from of qualifying fields as many of those traditional research methods and the STEM list.’’ students work for financial institutions, applying scientific principles and Response. DHS agrees that the STEM and some degree programs in those rigorous mathematical concepts (such as list should be flexible and envisions fields might not focus heavily on stochastic calculus). These underlying making periodic updates to the STEM quantitative skills. principles, and not the end employer, list in response to changes in STEM Response. DHS cannot fully respond dictate the bases for including this field fields, academic programs, or to requests to include broad groups of on the STEM list. technological trends. DHS will review degrees—such as degrees in certain Comment. Many commenters recommendations from the public ‘‘essential’’ health care and business requested that DHS classify STEM CIP concerning potential additions or fields—without an indication of the codes at the two-digit level to allow for deletions to the list, and may announce specific fields that are being suggested more majors to qualify as bases for changes through publication in the or a detailed explanation as to why STEM OPT extensions. A commenter Federal Register. DHS intends to use a those fields should be included on the recommended that DHS consider single procedure for amending the list list. Nevertheless, DHS declines to identifying eligible CIP codes by the and therefore disagrees with the define ‘‘STEM field’’ to generally two-digit series of the CIP taxonomy, commenter who recommended two include patient care and business fields and that in cases where such series is different procedures for additions and of study. As noted above, these fields do too broad, DHS consider using the four- deletions. Additionally, notice and not generally fall within the rubric of digit series, which ‘‘represent comment publication for every change ‘‘STEM fields.’’ For similar reasons, intermediate groupings of programs that to the STEM list would hinder DHS’s DHS declines to add all CIP codes that have comparable content and ability to be flexible and responsive to begin with 52 and 43. DHS notes, objectives.’’ changes in STEM fields. DHS notes, however, that the final STEM list that Some commenters requested that DHS however, that changes to the STEM list DHS is adopting with this rulemaking include additional categories of degrees would be based on the regulatory includes four CIP codes beginning with on the STEM list. One commenter definition of ‘‘STEM field,’’ which was 52: Management Science; Business recommended that DHS designate at the subjected to notice and comment. In Statistics; Actuarial Science; and two-digit level a number of potentially addition, DHS has provided a Management Science and Quantitative ‘‘related fields,’’ including Psychology mechanism for continuous feedback on Methods, Other. The final STEM list (CIP code 42), Health professions and the degrees included on the list and also includes two CIP codes beginning Related Programs (CIP code 51), Military encourages interested parties to suggest with 43: Forensic Science and Science, Leadership and Operational changes by sending their Technology, and Cyber/Computer Art (CIP code 28), Military Technologies recommendations to [email protected]. Forensics and Counterterrorism. and Applied Sciences (CIP code 29), DHS believes this language and the DHS notes that a number of the and Agriculture, Agriculture process described provide sufficient additional fields that commenters Operations, and Related Sciences (CIP clarity for the continued regulatory recommended for inclusion on the implementation of the STEM list. STEM list are included in the final list 98 DHS believes that those pharmacy-related CIP Comment. Many commenters DHS is adopting with this rulemaking. codes currently listed on the STEM list are in line requested that DHS include additional These include Medical Technology (CIP with the STEM definition, whereas the broad categories of degrees on the STEM code 51.1005), Health/Medical Physics recommendation of ‘‘Pharmacy’’ is too vague, and the other two recommendations, ‘‘Pharmacy list. For instance, some commenters (CIP code 51.2205), Econometrics and Administration’’ and ‘‘Pharmacy Policy and requested that DHS include all science Quantitative Economics (CIP code Regulatory Affairs,’’ fall outside the STEM degrees. Others requested that DHS 45.0603), Exercise Physiology (CIP code definition.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00037 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13076 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

code 1). The comment further iii. Prior STEM Degrees—Application degree (i.e., the DSO who recommended recommended that DHS designate at the Process the student’s current period of post- four-digit level ‘‘relevant 4-digit codes’’ Comment. DHS received a substantial completion OPT) is the DSO responsible from Architecture and Related Services number of comments pertaining to for verifying the CIP code(s) used to (CIP code 04), Library Science (CIP code provisions allowing students to use classify the student’s previously earned 25), Multi/Interdisciplinary Studies (CIP previously earned degrees to apply for degree. Finally, the institution that code 30), Homeland Security, Law STEM OPT extensions. Many conferred the prior degree must be Enforcement, Firefighting and Related commenters, particularly DSOs, accredited and SEVP-certified at the Protective Services (CIP code 43), and supported the inclusion of previously time the DSO recommends the student for the STEM OPT extension. Business, Management, Marketing, and earned degrees. Other DSOs submitted Thus, prior to approving a student’s comments requesting clarification Related Support Services (CIP code 52). STEM OPT extension based on a regarding the process for DSOs to The commenter stated that these previously earned degree, the DSO must nominate students for STEM OPT changes would account for ‘‘the ensure that the student is eligible for the extensions based on such degrees. Some increasingly multidisciplinary nature of extension based on the degree, which comments expressed concern about the education, the needs of the STEM includes verifying that the degree is on increased responsibilities these pipeline and STEM industry the current STEM list, that the degree provisions would place on DSOs. To infrastructure, and other technically- directly relates to the practical training reduce DSO recordkeeping burdens, a based areas of national interest.’’ opportunity, and that the degree was few commenters recommended that a issued by an institution that is currently Response. DHS believes that outside previously earned degree be allowed to accredited and SEVP-certified. DHS of the categories for which DHS suffice for nomination only if the acknowledges that such verification proposed moving to a two-digit student obtained the degree at his or her may place an additional burden on designation, designation at the two- or current school. Other commenters asked DSOs. But DHS expects this burden will four-digit level may result in overbroad DHS to clarify how DSOs would verify be minimal, as the required information eligibility. DHS reviewed the additional the accreditation of other institutions, should be readily accessible in most groups of CIP codes that were while other commenters questioned cases. recommended for designation at the how DSOs would verify previously With respect to verifying previously two- and four-digit level, and found that earned degrees from other institutions. earned degrees, DHS notes that many Some commenters stated that DSOs significant additional research would be institutions already require information need clear guidance on how to necessary to determine whether all of about such degrees from incoming determine whether a previously earned the covered fields are appropriately students. As such, the certification degree qualifies as a STEM degree characterized as STEM fields for required by this rule is consistent with sufficient to support a STEM OPT purposes of this rule. DHS welcomes an academic institution’s normal review extension. Some commenters also stated further input on these designations and of its students’ prior accomplishments. that DSOs may have trouble verifying others within the standard process for Additionally, for the majority of degrees that a practical training opportunity is providing input on the STEM list. granted in the past 10 years, recent and closely related to the student’s prior upcoming improvements to SEVIS may Comment. DHS received a number of field of study. Some commenters asked provide additional assistance to DSOs. comments requesting that DHS explain DHS to clarify whether the DSO at the CIP codes began appearing in SEVIS in whether the rule would effectively school from which the student received 2008 and on Form I–20 Certificates of eliminate certain fields from the STEM his or her most recent degree would be Eligibility in 2009, and in the December list. Specifically, commenters were the DSO responsible for verifying the 2015 SEVIS upgrade, SEVP improved concerned that the following fields Department of Education CIP codes the student history section for DSO would be removed from the list: used to classify the student’s previously reference.99 DHS is working toward an Architectural and Building Sciences/ earned degree. Many commenters noted even more robust student history that for students with double majors or Technology (CIP code 4.0902), Digital section. Based on these improvements, dual degrees, only the primary major’s Communication and Media/Multimedia a significant amount of information CIP code is visible on the Form I–20 (CIP code 9.0702), Animation, related to previously earned degrees Certificate of Eligibility. Some Interactive Technology, Video Graphics will be included in the SEVIS system commenters expressed an interest in and Special Effects (CIP code 10.0304), and immediately available to DSOs. The displaying a CIP code history (i.e., a Management Science (CIP code Department also commits to providing complete list of the student’s earned 52.1301), Business Statistics (CIP code additional training through SEVP to degrees) in SEVIS for ease of reference 52.1302), Actuarial Science (CIP code facilitate DSOs’ ability to perform this and verification for students who are 52.1304), Management Science and work in an efficient manner. Quantitative Methods, Other (CIP code applying based on previously earned With respect to determining whether 52.1399), Archaeology (CIP code STEM degrees. a previously earned degree is in a STEM 45.0301), Econometrics and Response. In response to commenters’ field, DHS notes that DSOs will only be Quantitative Economics (CIP code concerns, DHS clarifies several required to determine whether the requirements related to the use of 45.0603), Geographic Information degree is on the current STEM list (i.e., previously earned degrees. First, a Science and Cartography (CIP code the list in effect at the time of the STEM OPT extension may be granted 45.0702), and Aeronautics/Aviation/ application for a STEM OPT extension), based on a previously earned degree if not the list in effect at the time that the Aerospace Science and Technology, that degree is on the STEM list at the General (CIP code 49.0101). degree was conferred. DSOs will not be time of application for the STEM OPT required to review historical STEM lists. Response. DHS has retained these extension, rather than at the time that fields in the final version of the list. the student received the degree. Second, 99 DHS will provide specific training and These fields continue to fit within the DSO at the school from which the guidance related to this and other issues following DHS’s criteria for covered degrees. student received his or her most recent publication of this rule and further SEVIS upgrades.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00038 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13077

As such, DHS expects that verification even create disincentives to attend ask for additional information as of a previously earned degree in this smaller colleges or other institutions needed. regard will be no more burdensome than that may not provide as many degree that required of a recently-earned STEM programs as larger universities. And it iv. Previously Earned STEM Degrees— degree. would disqualify students based on Eligibility Requirements Similarly, with respect to the nothing more than their decision to Comment. DHS received a number of institution that conferred the prior switch institutions. Curtailing F–1 comments applauding DHS’s proposal degree, the rule does not require the students’ options with respect to to allow students to qualify for STEM DSO to verify whether the institution educational institutions in the United OPT extensions based on previously was accredited or SEVP-certified at the States is inconsistent with the rule’s earned STEM degrees. Some employers time the degree was conferred. The rule objectives. Furthermore, as noted stated that this change will be especially requires the DSO to determine only previously, DHS has considered the whether that institution is currently helpful in retaining scientists who suggestion to shift the rule’s obtain higher-level degrees in public accredited and SEVP-certified. recordkeeping and reporting obligations Regarding the accreditation health fields, as well as engineers and to students and employers and is scientists who pursue MBA and other requirement, the DSO may simply currently developing technological consult the Department of Education’s advanced business degrees after capabilities aimed at reducing receiving a STEM degree. Other Database of Accredited Postsecondary administrative burdens on DSOs, Institutions and Programs, or any other commenters, however, expressed employers, and students. concern with the proposal. One reasonable resource used by DSOs, to Comment. DHS received comments verify the institution’s accreditation. commenter, for example, asserted that seeking clarification on the specific students who have ‘‘abandoned’’ their Regarding SEVP-certification, the DSO types of information needed by DSOs to may search the Certified Schools list previous STEM degrees to study in approve STEM OPT extensions based on another non-STEM field should not be available at https:// previously earned STEM degrees. One studyinthestates.dhs.gov/school-search, allowed to obtain STEM OPT commenter, for example, asked whether extensions. Another commenter stated to see if a student’s educational DSOs would need to provide SEVIS institution is on the list at the time the that it was not clear from the regulatory printouts when the necessary CIP codes text that an extension would be allowed DSO determines whether to make the do not appear on the Form I–20 recommendation. ‘‘only to such students who seek to Certificate of Eligibility but are found in develop and utilize STEM skills from Additionally, DHS understands the SEVIS. The commenter also asked for concerns raised by DSOs regarding their prior STEM degree during the information regarding the types of extended OPT period.’’ students with double majors or dual ‘‘authoritative evidence . . . regarding degrees. DHS clarifies that in scenarios changes in CIP codes’’ that DSOs from Response. DHS agrees with comments where a student has simultaneously prior institutions may provide ‘‘so that stating that the provision related to prior earned a degree with a double major, or the STEM OPT-granting DSO has STEM degrees provides important more than one degree, the DSO should confidence that they are appropriately educational and training benefits to first attempt to confirm eligibility authorizing STEM OPT.’’ accomplished students with STEM through SEVIS data. If the DSO is Response. DHS continues to upgrade backgrounds. DHS acknowledges the unable to do so, the DSO may then the SEVIS system to bring clear, benefits of combining STEM and non- consult the student’s academic file at specific, and easily-accessible STEM disciplines, as recognized by the the DSO’s own institution to review information to users. As the system majority of commenters who whether the qualifying STEM degree commented on this specific issue. DHS was listed on the student’s application evolves, DHS expects to update guidance concerning methods for also disagrees with the notion that for admission. The DSO’s educational STEM students who subsequently institution either would already have acquiring and confirming CIP codes, and to provide specific training and pursue non-STEM degrees have access to that information or could ‘‘abandoned’’ their STEM degrees. It is request documentation from the guidance relating to these questions. DHS clarifies, however, that the not uncommon for STEM degrees to student. For further clarity, DHS has provide a foundation for career amended the regulatory text at 8 CFR Department will not generally require DSOs to provide SEVIS printouts, as advancement in fields where multi- 214.2(f)(10)(ii)(C) in this final rule to disciplinary backgrounds can be include a specific reference to dual SEVIS information is already available to DHS. For previously earned degrees, advantageous.101 Moreover, as stated degrees. previously, the rule requires that any Finally, although DHS shares DSOs should provide, if it is available, the CIP code applicable at the time the practical training during the STEM OPT commenters’ goals of minimizing extension period must be ‘‘directly administrative burdens on DSOs and degree was conferred. CIP codes are related’’ to the STEM degree. This their institutions, the Department currently republished every ten years, requirement applies with equal force to disagrees with the recommendation to and immediately prior versions remain allow STEM OPT extensions based on available electronically through the National Center for Education Statistics 101 As the National Science Foundation explained previously earned degrees only if such in its 2015 report entitled, ‘‘Revisiting The STEM degrees are obtained from the students’ Web site, with a crosswalk that connects Workforce: A Companion to Science and current educational institutions. This any changes between current and prior Engineering Indicators 2014,’’ the education-to- restriction would severely limit versions.100 DHS will take all occupation pathways in STEM fields are not always circumstances into account when linear, and individuals who earn multiple degrees, educational options for F–1 students, as such as a ‘‘STEM-educated lawyer or an individual it would effectively require those who adjudicating the application and may with both a STEM degree and a Master of Business may wish to engage in extended Administration degree can add unique value in a practical training to pursue advanced 100 See U.S. Department of Education, National number of work settings.’’ National Science Center for Education Statistics, Classification of Foundation, Revisiting the STEM Workforce: A degrees at the same institutions in Instructional Programs (CIP) 2010, available at Companion to Science and Engineering Indicators which they had earned their prior http://nces.ed.gov/ipeds/cipcode/ 2014 at 12 (Feb. 4, 2015), http://www.nsf.gov/nsb/ degree(s). Indeed, the limitation may crosswalk.aspx?y=55. publications/2015/nsb201510.pdf.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00039 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13078 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00040 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13079

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00041 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13080 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

issued an interim policy memorandum excuse the thesis requirement for employers to participate in E-Verify and (PM 602–0090) that clarified that an F– previously earned STEM degrees. to make a number of attestations 1 student engaging in post-completion Importantly, the option to use a intended to better ensure the OPT is eligible for a STEM OPT previously earned STEM degree as the educational benefit of STEM OPT extension if the student has completed basis for a STEM OPT extension is for extensions and the protection of U.S. all course requirements, except for the students who are participating in a 12- workers. The proposed rule included thesis, dissertation, or equivalent month period of OPT based on the these provisions, and the final rule requirement, when applying for the completion of coursework toward a non- retains them with certain changes and extension.102 The commenter noted that STEM degree at a higher educational clarifications in response to public SEVP had not yet provided a written level. Because such students have been comments. We summarize these update consistent with this USCIS admitted to degree programs at a higher provisions and changes below. policy memorandum, but instead had educational level, DHS anticipates that i. Employer Enrollment in E-Verify previously issued guidance indicating such students would have already Required that before a DSO could recommend a received their lower-level STEM STEM OPT extension, the DSO needed degrees. Moreover, because the rule This final rule requires all employers to ensure that the student had already allows previously earned STEM degrees training STEM OPT students to finished his or her thesis. Another to qualify if they were conferred up to participate in E-Verify, as has been commenter asked DHS to clarify 10 years ago, DHS believes the need for required since 2008. E-Verify whether the completion of a STEM conferral of the degree would further electronically compares information degree is a requirement before a student ensure the integrity of the program and contained on Form I–9, Employment can apply for a STEM OPT extension, as reduce the possibility of fraud. Eligibility Verification, with records the proposed rule referenced the Finally, DHS does not agree that there contained in government databases to ‘‘completion’’ of a degree. are contradictions between the USCIS help employers confirm the identity and Response. DHS clarifies that an F–1 policy memorandum and the ICE employment eligibility of newly-hired student engaging in a 12-month period guidance cited in the comments. The employees. DHS includes this of post-completion OPT based on the USCIS policy memorandum is requirement because E-Verify is a well- completion of coursework toward a consistent with the position taken by established and important measure that STEM degree is eligible for a STEM OPT SEVP in the ICE Policy Guidance (1004– complements other oversight elements extension based on that same degree if 03) with respect to the completion of a in the rule, and because it represents an the only outstanding requirement for thesis (or equivalent). For example, efficient means for employers to obtaining the degree at the time of section 6.7 of the ICE policy guidance determine the employment eligibility of application is the completion of a thesis states that a student in a graduate-level new hires, including students who have (or equivalent). As USCIS noted in the program who has completed all course received STEM OPT extensions. cited policy memorandum, because the requirements except for completion of ii. Use of E-Verify Company ID Number STEM OPT extension is an extension of the thesis (or equivalent) may apply for a previously granted period of post- DHS adopts the regulation as either pre-completion or post- proposed with regard to E-Verify, but completion OPT, it is logical to completion OPT while completing the conclude that students who are has modified Form I–983, Training Plan thesis. A student in this situation who for STEM OPT Students, so that it will applying for the STEM OPT extension applies for and receives post-completion need not necessarily have completed not require the insertion of an OPT may work full-time in a field their STEM degree thesis requirement employer’s E-Verify Company related to his or her degree; may apply (or equivalent) in order to be eligible for Identification number (E-Verify ID for the STEM OPT extension if the extension. DHS believes that this number). DHS makes this change in otherwise eligible; and would be eligible policy serves the nation’s interest in response to comments that raised for the Cap-Gap extension.103 As noted attracting and retaining talented STEM concerns regarding the potential for above, however, such a student would students from around the world. fraud that may arise from requiring this This option, however, is not be eligible for a STEM OPT extension number on a form accessible by other applicable to a request for a STEM OPT only if that extension is based on the program participants, including extension based on a previously same STEM degree that is the basis for students and DSOs. the student’s current 12-month period of obtained STEM degree; in such a case, iii. Employer Attestations the prior STEM degree must be fully OPT. A student who is on a 12-month conferred. The provision on previously period of OPT based on a non-STEM As noted in further detail below (see obtained degrees requires that the degree and who seeks a STEM OPT section IV.F. of this preamble, Training student must have received the degree extension based on a previously earned Plan for F–1 Nonimmigrants on a STEM itself within 10 years preceding his or STEM degree must have completed all OPT Extension), the rule requires the her STEM OPT application date. In requirements for conferral of the STEM student and employer to complete Form order to have received the degree, the degree—including any applicable thesis I–983, Training Plan for STEM OPT student would have needed to complete requirement (or equivalent). Students. Given DHS’ recognition of the his or her thesis (or equivalent), if such D. Qualifying Employers need to protect U.S. workers from a requirement pertains to the degree. possible employer abuses of the STEM Moreover, DHS does not believe it 1. Description of Final Rule and OPT extension, the Training Plan would be necessary or appropriate to Changes From NPRM contains terms and conditions for The final rule imposes certain employer participation aimed at 102 USCIS Policy Memorandum PM–602–0090, additional requirements on employers providing such protection. For instance, 17-Month Extension of Post-Completion Optional as a condition of employing STEM OPT under the rule, any employer wishing to Practical Training (OPT) for F–1 Students Enrolled hire a student participating in the STEM in Science, Technology, Engineering, and students. This rule requires all such Mathematics (STEM) Degree Programs, available at OPT extension must attest that, among http://www.uscis.gov/sites/default/files/files/ 103 See www.ice.gov/doclib/sevis/pdf/opt_policy_ other things: (1) The employer has nativedocuments/OPT_STEM.pdf. guidance_042010.pdf. sufficient resources and personnel

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00042 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13081

available to provide appropriate training cases, existing employees. Comments violates Title VII or section 274B of the in connection with the specified also reported that E-Verify is easy to use INA, 8 U.S.C. 1324b, fails to follow opportunity; (2) the STEM OPT student and clearly lays out the consequences of required verification procedures, or will not replace a full- or part-time, violations, while helping avoid hiring otherwise fails to comply with E-Verify temporary or permanent U.S. worker; abuses. requirements. Any employer who and (3) the opportunity assists the Some commenters noted that violates the immigration-related unfair student in attaining his or her training employers would be less likely to use E- employment practices provisions in goals. As described below, DHS has Verify unless such use was required. section 274B of the INA could face civil revised the second of these attestations Other commenters stated that the extra penalties, including back pay awards. in response to public comments. DHS burden and expense placed on Employers who violate Title VII face believes that the revised language is employers by the E-Verify requirement potential back pay awards, as well as clearer and better protects U.S. workers. helps protect U.S. workers by providing compensatory and punitive damages. Finally, consistent with the proposed an incentive for employers to hire U.S. Under the MOU, employers who violate rule, the final rule requires that the citizens over international students. either section 274B of the INA or Title terms and conditions of an employer’s Other commenters criticized the E- VII may have their participation in E- STEM practical training opportunity— Verify requirement on the grounds that Verify terminated. DHS may also including duties, hours and it also created a burden for students by immediately suspend or terminate the compensation—be commensurate with limiting where they could receive work- MOU, and thereby the employer’s those provided to the employer’s based training. Some commenters noted participation in E-Verify, if DHS or the similarly situated U.S. workers. Work that employers are willing to incur E- Social Security Administration duties must be designed to assist the Verify-related burdens because they determines that the employer failed to student with continued learning and be believe that an F–1 student may be their comply with established E-Verify set at a minimum of 20 hours per week. only candidate for the specific job. procedures or requirements. If the employer does not employ and Response. DHS agrees with DHS disagrees with comments has not recently employed more than commenters that support the E-Verify asserting that E-Verify will impose two similarly situated U.S. workers, the enrollment requirement, including significant burdens or costs on employer must instead ensure that the because E-Verify contains important employers or students.105 First, E-Verify terms and conditions of a STEM protections for U.S. and other workers. does not require a fee for its use. practical training opportunity are Before an employer can participate in E- Second, the E-Verify requirement commensurate with those for similarly Verify, the employer must enter into a remains unchanged since it was first situated U.S. workers employed by Memorandum of Understanding (MOU) established in the 2008 IFR, and DHS is with DHS. This MOU requires that other employers of analogous size and not aware of significant burdens or costs employers follow required procedures industry and in the same geographic on employers that have participated in in the E-Verify process to ensure area of employment. The term the STEM OPT extension program since maximum reliability and ease of use ‘‘similarly situated U.S. workers’’ that time. In fact, while in 2008 there with the system, while preventing includes U.S. workers performing were just over 88,000 employers unauthorized disclosure of personal similar duties and with similar enrolled in E-Verify, there are now more information and unlawful educational backgrounds, employment than 602,000 enrolled employers.106 discriminatory practices based on experience, levels of responsibility, and Third, E-Verify is fast and accurate, with national origin or citizenship status. In skill sets as the STEM OPT student. The 98.8 percent of employees automatically particular, the employer agrees not to student’s compensation must be use E-Verify for pre-employment confirmed as authorized to work either reported on the Training Plan, and the 107 screening of job applicants or in support instantly or within 24 hours. Finally, student and employer will be of any unlawful employment E-Verify is one of the federal responsible for reporting any change in practice.104 The employer further agrees government’s highest-rated services for compensation to help the Department to comply with Title VII of the Civil customer satisfaction as measured by monitor whether STEM OPT students 108 Rights Act of 1964 and section 274B of employer surveys, and DHS are being compensated fairly. The the INA, 8 U.S.C. 1324b, by not employer must affirm that all 105 When DHS studied E-Verify costs, 76% of discriminating unlawfully against any responding employers stated that the cost of using attestations contained in the Training individual in hiring, firing, employment Plan are true and correct to the best of E-Verify was zero ($0). See Westat study evaluating eligibility verification, or recruitment or E-Verify, ‘‘Findings of the E-Verify Program the employer’s knowledge, information referral practices because of his or her Evaluation’’ at 184 (Dec. 2009). Available at and belief. http://www.uscis.gov/sites/default/files/USCIS/E- national origin or citizenship status, or Verify/E-Verify/Final%20E- 2. Public Comments and Responses by committing discriminatory Verify%20Report%2012-16-09_2.pdf. documentary practices. Illegal practices 106 i. Employer Enrollment in E-Verify USCIS, History and Milestones, https:// can include selective verification, www.uscis.gov/e-verify/about-program/history-and- Required improper use of E-Verify, or discharging milestones. Comment. Many commenters 107 USCIS, E-Verify Program Statistics: or refusing to hire employees because Performance, http://www.uscis.gov/e-verify/about- expressed support for requiring they appear or sound ‘‘foreign’’ or have program/performance. employers of F–1 students with STEM received tentative nonconfirmations. 108 Since 2011, USCIS has collected information OPT extensions to participate in E- The MOU also makes clear that USCIS through E-Verify surveys, which reflect high rates Verify as proposed. Several commenters may suspend or terminate an employer’s of customer satisfaction by employers. For example, the employer 2014 Customer Satisfaction Index of stated that the E-Verify requirement is access to E-Verify if the employer USCIS E-Verify rose one point from 2013 for a score an effective way to protect against 87 (on a scale from 1–100) for all and existing users, employment of unauthorized 104 See U.S. Citizenship and Immigration and 86 for new enrollees. Moreover, since 2010, individuals. They observed that E-Verify Services, The E-Verify Memorandum of employer users have been highly satisfied with E- Understanding for Employers, available at http:// Verify and the E-Verify CSI number has never provides the best means available for www.uscis.gov/sites/default/files/USCIS/ scored below the low 80s. See The E-Verify employers to confirm employment Verification/E-Verify/E-Verify_Native_Documents/ Customer Satisfaction Survey, July 2015 available at eligibility of new hires and, in some MOU_for_E-Verify_Employer.pdf. Continued

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00043 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13082 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

continually looks for ways to improve that all employees will receive the same Comment. Several commenters and enhance the system. wages and benefits. recommended eliminating the E-Verify Comment. Commenters also Response. DHS clarifies that the non- requirement. These commenters cited supported the E-Verify requirement discrimination provisions in the E- several concerns, including that E- because its increased use further Verify MOU prohibit only Verify may increase burdens and maximizes the reliability and ease of use discrimination based on national origin expenses on both employers and of the system, while preventing the or citizenship (or immigration) status in employees; unfairly limit job options unauthorized disclosure of personal violation of section 274B of the INA, 8 and career opportunities for STEM OPT information and unlawful U.S.C. 1324b, or Title VII. The language students, because many companies are discriminatory practices based on is not intended to ensure that all not willing to participate in E-Verify; national origin or citizenship status. employees will receive the same wages and create an unnecessary barrier to the Many commenters stated that when and benefits, except where any hiring of qualified F–1 students. Some using E-Verify pursuant to program differential is based on national origin commenters stated that the E-Verify requirements, an applicant’s citizenship status. DHS notes, however, that the requirement is redundant for students in is less likely to be disclosed to STEM OPT extension program contains compliance with STEM OPT rules and employers, and E-Verify employers are separate provisions to prevent adverse instead simply works against the more likely to provide the same job impacts on U.S. workers. Among other interest of those students. opportunities, wages, and benefits to things, the Training Plan established by Response. E-Verify is not new for employees. Some commenters stated this rule requires employers to attest to employers of STEM OPT students. Since that E-Verify helps ensure that various wage and other protections for 2008, every employer that has employed employers will recruit applicants to U.S. workers and STEM OPT students. F–1 students on STEM OPT extensions meet their needs without negatively Comment. One commenter stated that has been required to enroll the relevant affecting the employment of U.S. employers and the academic community hiring site or work location in E-Verify. workers. They added that these are not familiar with E-Verify and Because E-Verify is fast and easy to use requirements thus ensure the integrity (as discussed above) and STEM OPT 109 suggested that DHS promote and of the STEM OPT extension. explain it to stakeholders. employers have experience with the Response. DHS agrees with comments system, DHS does not believe the Response. DHS agrees that it is supporting the E-Verify requirement, requirement would be particularly important to promote and explain E- including because E-Verify protects burdensome to potential employers Verify to stakeholders, and the against the unauthorized disclosure of affected by this rule. Relatedly, DHS Department continues to focus on such personal information. E-Verify has also disagrees that the E-Verify outreach. Additionally, the USCIS Web implemented an extensive set of requirement will substantially change site contains an informative portal technical, operational and physical the volume of STEM OPT employers or (http://www.uscis.gov/e-verify) with a security controls to ensure the unfairly limit job options for STEM OPT number of resources regarding E-Verify, confidentiality of an individual’s students. information. Those controls include including but not limited to E-Verify Comment. One commenter provided user-specific accounts and complex manuals and guides; various anecdotal information suggesting that a passwords that must be changed often to memoranda of understanding; E-Verify specific Federal agency does not access the system; user accounts that are brochures, fliers and presentations (in currently participate in E-Verify. locked after several failed attempts to English and various other languages); According to that commenter, if a log on; active session timeouts within presentations specially designed for federal agency is unwilling to register the E-Verify interface; data encryption employers, workers, federal contractors, for E-Verify, ‘‘what hope is there that during all data transmissions between and state workforce agencies; and the E- non-governmental employers will the employer’s workstation and the Verify monthly newsletter. utilize the system?’’ Another commenter system; and procedures for reporting Comment. One commenter suggested stated that companies with federal and responding to breaches of that DHS either apply the E-Verify employment contracts do not have information. DHS continues to participation requirement to the entire policies reflecting E-Verify’s incorporate privacy principles and OPT program or waive it as a prohibitions against unlawful security measures into all E-Verify requirement for STEM OPT extensions. discriminatory practices based on processes, and any changes to E-Verify Response. DHS disagrees with the national origin or citizenship status. will include the highest level of privacy commenter’s recommendation that the Response. DHS supports the premise protections possible.110 E-Verify requirement either be applied that the Federal Government should Comment. A number of commenters to the entire OPT program or waived as lead by example, and notes that the stated their belief that E-Verify’s non- a requirement for STEM OPT Office of Management and Budget discrimination provisions will ensure extensions. The focus of this rule is to (OMB) requires all Executive Branch amend regulations related to STEM OPT agencies to participate in E-Verify. The http://www.uscis.gov/sites/default/files/USCIS/ extensions. There are, of course, many Federal Government also requires Verification/E-Verify/E-Verify_Native_Documents/ cases in which DHS could condition covered federal contractors to E-Verify_Annual_Customer_Satisfaction_Survey_ 2015.pdf. receipt of a benefit on the use of E- participate in E-Verify as a condition of 109 Additionally, one commenter supported the Verify, but the Department has chosen federal contracting. Even if a federal regulation generally, but expressed a to take a measured and incremental contractor that uses E-Verify does not misunderstanding about the process and the E- approach by thus far applying the E- have its own policies reflecting E- Verify program, writing that the ‘‘Government will check that if the company really need [sic] those F1 Verify requirement to employers of Verify’s prohibitions against unlawful students or not and decide to give them E-verify or STEM OPT workers. DHS notes that this discriminatory practices based on not.’’ DHS notes that a need-based check is not part approach has so far been highly national origin or citizenship status, that of the E-Verify enrollment or participation process. successful. DHS may consider requiring federal contractor is bound to the same 110 See U.S. Citizenship and Immigration the use of E-Verify with respect to other prohibitions, as articulated in the E- Services, ‘‘Our Commitment to Privacy,’’ available at http://www.uscis.gov/e-verify/about-program/ benefits granted by the Department in Verify Memorandum of Understanding, our-commitment-privacy. future rulemakings. regarding violation of Title VII and the

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00044 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13083

anti-discrimination provision of the INA additional mechanisms are necessary, Authorization.111 In addition, some (INA sec. 274B, 8 U.S.C. 1324b) and to the extent that the comments are employers and universities make their applicable to all E-Verify users. directed at the E-Verify program E-Verify ID numbers available on the Comment. One commenter suggested generally, they are outside the scope of internet. For that reason, DHS believed that the E-Verify requirement should this rulemaking. that releasing such numbers to a limited depend on the size of the employer’s Accordingly, DHS is finalizing the group of students would not represent a workforce or on the employer’s specific proposed E-Verify requirement without significant fraud risk. industry. change. DHS invites employers and DHS understands, however, that some Response. DHS disagrees with the employees to learn more about E-Verify. employers take significant steps to commenter’s recommended change Tutorials, guidance, and other protect their E-Verify ID numbers from because of the inequities such a change informative resources are available at publication, including mailing would introduce into E-Verify. http://uscis.gov/e-verify. Information Applications for Employment Requiring all STEM OPT extension about employer obligations and Authorization directly to USCIS on their employers to enroll in E-Verify, without employee rights under the anti- employees’ behalf in order to avoid exception, supports a consistent and discrimination provision of the INA revealing the number to such transparent program that treats all (INA sec. 274B, 8 U.S.C. 1324b) is employees. Some employers believe that participants the same and helps protect available on the following Web site: the unauthorized release or publication both STEM OPT students and U.S. www.justice.gov/crt/about/osc. of an employer’s E-Verify ID number workers. Further, E-Verify’s robust could result in significant fraud that public outreach materials and frequent ii. Use of E-Verify Company ID Number might be difficult to redress. technological enhancements reduce Comment. Several commenters Accordingly, in response to these burdens on all employers, large and recommended eliminating the concerns, DHS has decided to remove small. Finally, when E-Verify employers requirement that the employer’s E- the E-Verify ID number from the sign the required Memorandum of Verify ID number be listed on Form I– Training Plan for STEM OPT Students. Understanding, they agree to train their 983, Training Plan for STEM OPT DHS notes that it will continue to users on proper employment Students, because having this receive such employers’ E-Verify ID verification procedures. This is in information visible to the student and numbers through the submission of addition to the obligation to avoid DSO could lead to fraudulent use of Applications for Employment unlawful discriminatory practices based such numbers. According to two Authorization. on national origin or citizenship status. commenters, some employers currently DHS declines to adopt the suggestion Waiving the E-Verify requirement for refuse to provide their E-Verify ID to change the current STEM OPT certain employers would thus number to students or universities due application process so that the employer undermine the safeguards of the rule. to fraud concerns and have adopted (rather than the student) would be Comment. Several commenters processes to avoid revealing this required to file the Application for supported mandatory E-Verify sensitive information, such as filing the Employment Authorization on the participation for all employers, with students’ STEM OPT extensions student’s behalf. This change, in which resulting fines for any program themselves. the employer would effectively become violations, and recommended that DHS One commenter cited anecdotal the applicant for employment require all employers to use E-Verify. authorization, would represent a Another commenter requested more reports of E-Verify ID numbers being posted online and F–1 students significant policy shift and could government regulation of E-Verify. produce broad and unwanted Another commenter suggested fraudulently using those numbers to repercussions. Among other things, additional regulation of E-Verify, but apply for STEM OPT extensions. such a change would largely and did not specify what such regulation According to the commenter, there is no improperly exclude the STEM OPT would entail. Additionally, a follow-up or investigation as to whether student from the application process, commenter suggested that the E-Verify the student actually works for the and further make the student dependent parameters should include ‘‘better employer whose number is listed on on the employer for maintaining the screening [mechanisms] to weed out’’ Form I–765, Application for student’s status. DHS believes such a participation by what the commenter Employment Authorization, so students change to its longstanding policy would described as dishonest consulting can freely pass these numbers around, be disproportionate to the relatively few companies that exploit students. and have reportedly done so. The Response. With respect to requiring commenter also asked DHS to bolster E- alleged cases of fraud. Finally, DHS all employers to use E-Verify, DHS notes Verify anti-fraud measures by allowing declines to adopt the recommendation both (1) that this request is outside the the employer to file the application to provide employers with lists of F–1 scope of this rulemaking and (2) that instead of the prospective employee. students, due to privacy considerations because participation requirements are Similarly, another commenter asked and the administrative burdens related set by federal statute, congressional DHS to give employers a list of F–1 to issuing such lists. action would be required to make any students who have used their E-Verify iii. Non-Replacement Attestation ID numbers as a security measure. such changes. With respect to the other Comment. Several commenters voiced suggestions noted above, DHS notes that Response. DHS is concerned about the possible abuse of the E-Verify program concern about the breadth of some of the E-Verify MOU already prescribes E- the language in the Employer Verify enrollment and use, and broadly and potential fraud from the unauthorized publication of E-Verify ID Certification section (Section 4) of the prohibits unlawful or improper use of E- proposed Mentoring and Training Plan, Verify. USCIS also maintains an E- numbers. In addressing this issue, DHS had considered that employers often stating that such language could create Verify Hotline and a Monitoring and litigation risks or interfere with Compliance Division that investigates provide their E-Verify ID numbers to potential employees in order to apply and responds to complaints regarding E- 111 See item #17 on Form I–765, available at Verify-related exploitation. The for work authorization from USCIS by http://www.uscis.gov/sites/default/files/files/form/i- Department does not agree that filing Applications for Employment 765.pdf.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00045 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13084 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00046 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13085

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00047 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13086 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00048 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13087

Training Plan the employer signs. DHS recruitment requirement for STEM OPT benefits such students provide to the also reserves the right to ask employers employers and a role for the Department U.S. economy and other national to provide the evidence they used in of Labor. Some commenters similarly interests. Consistent with the proposed assessing the compensation of similarly stated that the Department of Labor rule, this final rule increases the STEM situated U.S. workers. This may include should review all employer submissions OPT extension period to 24 months for compensation figures for similarly with respect to hours and wages. students meeting the qualifying situated employees who are U.S. Another commenter suggested that DHS requirements. The 24-month extension, workers. Requiring employers to report add a labor condition application when combined with the 12 months of compensation figures for all U.S. worker requirement and petition process initial post-completion OPT, allows employees, however, would not similar to those used for seeking H–1B qualifying STEM students up to 36 necessarily provide meaningful data. visas. months of practical training. STEM OPT students will use their Response. DHS carefully considered Also consistent with the proposed knowledge and skills to perform duties the suggestions to include recruitment rule, the final rule provides, for students and assume responsibilities that are not requirements in the STEM OPT who subsequently attain another STEM similar to those, for instance, of extension program but has determined degree at a higher educational level, the corporate management or mailroom not to include such requirements at this ability to participate in an additional 24- employees. time. DHS notes that it has implemented month extension of any post-completion iv. Other Comments on Attestations and a number of new protections for U.S. OPT based upon that second STEM Restrictions workers and STEM OPT students in this degree. In particular, the rule would rule, including the requirement to pay allow a student who had completed a Comment. DHS received a number of commensurate compensation, the comments suggesting that additional STEM OPT extension pursuant to prohibition against replacing U.S. previous study in the United States and attestations or other restrictions, workers, various reporting including recruitment requirements, be who subsequently obtained another requirements, and clarifying the qualifying degree at a higher degree added to further protect U.S. workers. A agency’s authority to conduct site visits. number of commenters stated that level (or has a qualifying prior degree, Balanced within the broader goals of as discussed in more detail below), to companies should be unable to hire this rule, DHS has determined that these anyone but a U.S. citizen until U.S. qualify for a second 24-month STEM protections are sufficient. The OPT extension upon the expiration of citizens are all employed, whether in Department, however, will continue to on-the-job training positions or regular the general period of OPT based on that evaluate these protections and may additional degree. staff positions. One commenter stated choose to include new attestations or that ‘‘[o]nly when a position cannot be other requirements in future This aspect of the rule is finalized as filled by a U.S. worker should an rulemakings. proposed. international worker be considered; this With regard to the suggestion that 2. Public Comments and Responses is especially true for entry level DHS is not in compliance with section positions since many international 212(a)(5) of the INA, this provision is i. Length of STEM OPT Extension students have the benefit of experience limited, by definition, to certain Period or additional education in their home individuals seeking permanent Comment. Many commenters country before beginning their OPT immigrant status. See INA sec. qualifying degree program and are not expressed support for the proposed 24- 212(a)(5)(D), 8 U.S.C. 1182(a)(5)(D). The truly ‘entry level’ employees.’’ One month STEM OPT extension period. provision does not apply to students in commenter proposed additional One commenter stated that this length, F–1 nonimmigrant status or to any other provisions to safeguard U.S. workers, in combination with the 12-month post- nonimmigrant seeking employment in including requiring companies to look completion OPT period, aligns well the United States. for U.S. citizen workers before hiring with the typical training period for With regard to suggestions to provide international students and having the doctoral students, as well as the three- a greater role for the Department of U.S. Department of Labor fine year grants often provided by the NSF Labor, DHS appreciates that the companies that did not comply with the to such students. A commenter Department of Labor’s long experience proposed labor protections. Another commended the three-year total insofar with foreign labor certification might comment referenced opinions of a as it ‘‘mirrors a cycle of research and assist DHS in its ongoing administration professor that STEM OPT contributes to training that is more in line with real- of the STEM OPT extension. employers hiring younger workers who world, practical applications.’’ Another Accordingly, where it may prove may replace more-experienced U.S. commenter, who self-identified as an F– valuable and as appropriate, DHS may workers, and suggested that recruitment 1 student in Electrical Engineering, requirements favoring experienced U.S. consult with the Department of Labor to suggested that the 24-month period for workers be added to the rule. benefit from that agency’s expertise. a STEM OPT extension would dovetail One commenter also suggested that E. STEM OPT Extension Validity Period with many research and development DHS amend the rule consistent with projects and was an appropriate time section 212(a)(5)(A) of the INA, 8 U.S.C. 1. Description of Final Rule and period because it would further 1182(a)(5)(A), which designates as Changes from NPRM encourage employers to allow STEM inadmissible any foreign national This final rule sets the duration of the OPT students to gain practical ‘‘seeking to enter the United States for STEM OPT extension at 24 months. experience related to their fields of the purpose of performing skilled or Following seven years of experience study. The student explained that a unskilled labor’’ absent a certification with the 17-month STEM OPT summer internship on a power from the Department of Labor that such extension implemented in the 2008 IFR, generation project could lead to a post- employment will not adversely affect DHS re-evaluated the length of the completion training opportunity with similarly employed U.S. workers. extension, primarily in light of the the same company if the STEM OPT According to the commenter, this educational benefits such training extension was finalized for a 24-month provision required DHS to include a provides to F–1 students and the period.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00049 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13088 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

Another commenter stated that ‘‘most the major source of federal funding for (including master’s students) will development projects are done on a grants and projects in many STEM receive significant educational benefits yearly basis,’’ and that by lengthening fields, including mathematics and from the extension. Based on the public the STEM OPT extension period to 24 computer science, DHS believes the comments received, DHS expects that months, students would be eligible to standard duration of an NSF grant some students in some fields and degree participate in STEM OPT for multiple served as a reasonable benchmark for programs in fact would benefit from project cycles. One commenter determining the maximum duration of more than three years of practical welcomed the proposed 24-month OPT for STEM students. DHS reiterates training. DHS concludes, however, that extension because it provided ‘‘added that the focus of this rule is to enhance conditioning the period of employment flexibility’’ for workforce planning educational objectives, not to allow authorization on case-by-case needs. That commenter explained that certain graduates more opportunities to demonstrations of need would this change could improve innovation apply for or obtain H–1B visas. significantly increase burdens on the and development of new products and Comment. Some commenters viewed Department and potentially yield services, and it could help STEM the 24-month extension as too lengthy, inefficient and inconsistent students gain necessary experience for stating that a promising individual does adjudications. DHS also disagrees with their own career growth. not need an additional 24 months to the notion that the STEM OPT extension A commenter added that the prove his or her worth in a position. allows internships at little or no pay; extension period would allow students One comment quoted a university this rule specifically prohibits that kind to gain more ‘‘hands-on practical professor as stating that ‘‘[i]t’s an over- of activity. Based on the above, DHS experience’’ by working on new reach to claim that someone who considers 24-month STEM OPT products and initiatives that are more completes a master’s degree in as little extensions, combined with the other complex and that have a longer as 12 months needs three years features of this rule, sufficient to serve development cycle. One commenter interning—at low or no pay in many the purpose of this rule while suggested that the 24-month extension cases—to get further training.’’ The appropriately protecting U.S. worker would greatly benefit research activities. commenter stated that few STEM OPT interests. This commenter opined that such graduates will work on an NSF grant- Comment. Some commenters stated extensions would help students by funded project and that ‘‘[v]irtually all that DHS did not base the proposed 24- providing a period of stay consistent of the STEM graduates will work in the month duration on sufficient with the research needs in the private sector on applied projects and information. One commenter stated that commenter’s field, which would also tasks where lengths are typically 6 his first post-college software benefit the commenter’s future job months or less.’’ The commenter did not development project took one year, and prospects in the commenter’s home provide a basis for these factual that ‘‘[t]he average time a new graduate country. assertions. stays at a first job is only 18 months.’’ Some commenters recommended a Response. The purpose of the 24- The commenter did not cite the source longer STEM OPT extension, most month extended practical training of this information or state whether the commonly 36 months, thus increasing period is to provide the student an 18-month figure applies to STEM practical training to a total of 48 months opportunity to receive work-based graduates only. for STEM students. Other commenters guided learning and generally enhance Response. The anecdotal information suggested a total STEM OPT period as the academic benefit provided by STEM provided by the commenter about the long as six years. Some commenters OPT extensions. The purpose is not to commenter’s first software development sought longer extensions so as to allow have the student prove his or her worth. project contradicts many other comments in the record stating that the students additional attempts at applying DHS disagrees with the implication that proposed extension length was for and obtaining H–1B visas. the extension will not effectively consistent with their experience in Response. Currently, DHS views a 24- enhance and supplement the STEM fields generally. The commenter’s month extension as being sufficient to individual’s study through training. general statement about the average time attract international STEM students to Consistent with many comments a graduate stays at a first job is study in the United States, and to offer received from higher education unsupported; DHS has no basis to a significant opportunity for such associations and universities, DHS determine whether this figure relates to students to develop their knowledge believes that allowing students an STEM students specifically, or what the and skills through practical application. additional two years to receive training relationship might be between this Moreover, as stated elsewhere, the 24- in their field of study would figure and the appropriate period of month period—in combination with the significantly enhance the knowledge 12-month post-completion OPT time for practical training. and skills such students obtained in the Comment. Several commenters period—is based on the complexity and academic setting, benefitting the typical duration of research, suggested differentiating STEM OPT students, U.S. educational institutions, extension periods by grade or degree development, testing, and other projects and U.S. national interests. commonly undertaken in STEM fields. level. One commenter recommended Moreover, while DHS agrees it is that doctoral students should obtain Such projects frequently require possible that some STEM OPT students applications for grants and fellowships, longer OPT periods than others. may not ‘‘need’’ the extension, DHS Response. DHS has decided to extend grant money management, focused expects that many qualifying students OPT periods based on field of study— research, and publications. As such, specifically, for students completing they usually require several years to _ gpg index.jsp (‘‘The proposed duration for which requirements for their degrees that are complete. For instance, NSF typically support is requested must be consistent with the in STEM fields—rather than based upon funds projects through grants that last nature and complexity of the proposed activity. Grants are normally awarded for up to three years education level. As noted above, this for up to three years.112 As the NSF is but may be awarded for periods of up to five rule recognizes the need to strengthen years.’’). For instance, NSF funding rate data show 112 National Science Foundation, Grant Proposal that in fiscal years 2012–2014, grant awards for the existing STEM OPT extension, in Guide. sec. II.c.2.a.(4)(b), available at http:// biology were provided for an average duration of significant part, to enhance the integrity www.nsf.gov/pubs/policydocs/pappguide/nsf15001/ 2.87, 2.88, and 2.81 years, respectively. and educational benefit of the program

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00050 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13089

in order to help maintain the nation’s contingent upon obtaining an advanced the STEM degree that formed the basis economic, scientific, and technological degree in a completely different field. of the first STEM OPT extension. For competitiveness. Additionally, a Such a requirement could stifle a program integrity reasons, DHS believes primary basis for extending OPT to 24 student’s effort to specialize and build that it would be inappropriate to allow months for STEM students is, as stated substantial expertise in a selected field a student to obtain two consecutive above, the complexity and typical of interest, whereas affording a second STEM OPT extensions without an duration of research, development, two-year STEM OPT extension could intervening degree and period of post- testing, and other projects commonly encourage the student to invest further completion OPT. undertaken in STEM fields. This policy in his or her education to develop Comment. Some commenters is also consistent with DHS practice, greater expertise or specialization recommended that DHS consider which has traditionally not extended within the STEM field. In addition, an allowing a third extension for students, the length of the OPT period based upon enormous range of practical training thereby allowing one grant per higher level of degree. For all these reasons, opportunities may exist within a given education degree level (i.e., bachelor’s, DHS declines to incorporate the field. For example, a student could master’s, and Ph.D.). One such commenter’s request to extend the initially graduate with a bachelor’s commenter noted that ‘‘[l]imiting the validity period of the extension based degree in microbiology, physics, or number of lifetime grants to two STEM upon degree level. engineering and conduct academic periods would negatively impact Ph.D. Comment. A commenter suggested a research during the first STEM OPT graduates who do not already have an total post-completion OPT period of extension. Then, the student could H–1B or qualify for another three to four months. The commenter return to school to obtain a masters or classification of employment stated that a shorter OPT period was doctoral degree in the same field and authorization.’’ necessary to prevent wages from use a second STEM OPT extension to Response. More often than not, declining and to avoid ‘‘pit[ting] foreign obtain practical training in a more nonimmigrant students do not take students against [U.S.-based workers] in specialized or industrial capacity. extended breaks after graduating from a [the] job market.’’ Another commenter Allowing only one lifetime STEM OPT master’s program before pursuing a stated that ‘‘[p]erhaps if the program is extension may unnecessarily doctoral degree.113 For that reason, it short enough, employers will treat it as disincentivize specialization in these would be rare for a Ph.D. student to use mutually beneficial training rather than important and innovative fields. one STEM OPT extension for the a more long-term employment master’s portion of the degree, and prospect.’’ iii. Other Comments Related to Multiple another STEM OPT extension for the Response. To the extent the Extensions Ph.D. portion of the degree. Most commenters seek a change in the overall Comment. One commenter sought doctoral degrees are combined into a OPT program, the comment is outside clarification on whether the proposed single program which grants both the scope of the rulemaking. And for the rule would allow a student to obtain master’s degrees and doctoral degrees. reasons stated above, DHS has two consecutive STEM OPT extensions, DHS believes that the two extensions determined that an OPT extension of with one directly following the other. provided by this rule are consistent with three to four months would be Another commenter stated that a typical education patterns and sufficient insufficient for students in the STEM footnote in the preamble to the to provide the educational, economic, fields to further the objectives of their proposed regulation suggested that an and cultural benefits intended by the courses of study by gaining knowledge international student who earns rule. and skills through on-the-job training. successive qualifying STEM degrees Comment. Commenters requested that Additionally, this rule includes ‘‘will be unable to link this extension a student be allowed multiple safeguards for the interests of U.S. with his or her first extension.’’ The extensions for multiple degrees earned workers. commenter recommended that DHS at the same educational level. clarify that an international student who Response. DHS has considered these ii. Availability of a Second STEM OPT qualifies for two OPT extensions may comments. Longstanding administration Extension complete them without any disruption of the F–1 visa classification and the Comment. One commenter requested in his or her practical training, provided OPT program, see 8 CFR 214.2(f)(10), that DHS provide further explanation as all other requirements are met. has required students to move to higher to ‘‘why a foreign student would need Response. DHS clarifies that the final education levels before qualifying for a second 2-year extension period after rule, as with the proposed rule, does not additional periods of OPT, so that receiving an advanced STEM degree, allow students to obtain back-to-back practical experience is more likely to be when the student has already enjoyed a STEM OPT extensions. A STEM OPT progressive in quality and scope. DHS full 3 years of OPT after the initial extension can only be granted as an has determined that limiting additional STEM degree.’’ The commenter stated extension of a regular OPT period, and periods of OPT, including a second that, at a minimum, DHS should require not as a freestanding period of practical STEM OPT extension, to a new a student who seeks a second STEM training. A student who has already educational level continues to be a OPT extension to show that the participated in a STEM OPT extension legitimate construct to protect program advanced degree is in a field completely would need to engage in a new course integrity and better ensure work-based different from the undergraduate degree of study and subsequently complete a learning for F–1 students is progressive. field. A commenter similarly requested new initial post-completion practical This higher degree requirement has that DHS limit the extension to once per training period before applying for a long attached to 12-month post- lifetime, stating that the increased second STEM OPT extension based on completion OPT. Because 24-month duration ‘‘has the potential to blur the a new STEM degree or a previously line between a student visa and an obtained degree (other than a degree 113 SEVIS data as of January 28, 2016, shows that employment visa.’’ that had already been the basis for a approximately 88 percent of students who had been at a master’s education level and subsequently Response. DHS disagrees with the STEM OPT extension). The new or enrolled in a program at the doctoral level did so commenter’s suggestion that a second previously obtained STEM degree within one year of the end of their master’s course two-year STEM OPT extension be would need to be at a higher level than of study.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00051 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13090 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

STEM OPT extensions only are STEM OPT extension. Under 8 CFR Training Plans. DHS clarifies the available to individuals completing 103.2(b)(8)(iii), for example, USCIS may standard below. their 12-month post-completion OPT request additional evidence of eligibility iii. Form Fields, Form Number, Form period, individuals by definition can for a benefit if the evidence submitted Instructions only obtain a STEM OPT extension after in support of an application does not completing a higher education level. establish eligibility. Accordingly, USCIS A number of commenters provided The policy in this final rule merely may request a copy of the Training Plan, specific suggestions regarding the recognizes that longstanding policy. in addition to other documentation that proposed form and instructions. For may be in the possession of the student, instance, commenters recommended F. Training Plan for F–1 Nonimmigrants the employer, or the student’s DSO. that DHS relabel certain fields, use a on a STEM OPT Extension DSOs may not recommend a student different form number than the Form I– 1. Description of Final Rule and for a STEM OPT extension if (1) the 910 that DHS had initially proposed, Changes from NPRM employer has not provided the and otherwise improve the form. DHS attestations for that student required by has made a number of changes in Central to the STEM OPT extension is the rule or (2) the Training Plan does response to these comments, including a new training plan requirement to not otherwise reflect compliance with relabeling certain fields and changing formalize the relationship between the the relevant reporting, evaluation and the form number. DHS explains these F–1 student’s on-the-job experience and other requirements of the rule. DHS may changes below. the student’s field of study and deny STEM OPT extensions with academic learning. The rule requires the iv. Training Plan Obligations and Non- employers that the Department Discrimination Requirements submission of Form I–983, Training determines have failed to comply with Plan for STEM OPT Students (Training the regulatory requirements, including A number of commenters stated or Plan), jointly executed by the F–1 the required attestations. As noted implied that U.S. employers do not have student and the employer, but permits above, ICE may investigate an training programs, or related policies, an employer to utilize certain training employer’s compliance with these and that any requirement that such programs already in place. The attestations, based on a complaint or programs be offered to F–1 students proposed rule included this provision; otherwise, consistent with the employer would thus benefit such students and DHS has retained the provision in the site-visit provisions of the rule. not U.S. workers. Others stated that the final rule, with changes and As compared to the proposed rule, program was intended to benefit clarifications in response to public and in response to public comments students from particular countries or comments. We summarize these received, DHS has made two changes to backgrounds, to the disadvantage of provisions and changes below. the general training plan requirement. others. Some of these commenters raised concerns about various non- i. General Training Plan Requirement First, DHS modified the regulatory text discrimination laws that they believed and Submission Requirements and Training Plan form to clarify that employers may use their existing would be violated as a result of the The rule requires a formal training training programs for STEM OPT training plan requirements. DHS program for STEM OPT students in students, so long as the existing training carefully considered these concerns, order to enhance and better ensure the program meets this rule’s requirements. and we summarize the comments and educational benefit of STEM OPT Second, DHS has modified the form to DHS’s response below. extensions. The employer must agree to focus on training and has thus removed 2. Public Comments and Responses take responsibility for the student’s the word ‘‘mentoring’’ from the form. i. General Training Plan Requirement training and skill enhancement related The information collection instrument and Submission Requirements to the student’s field of academic study. for this plan is now titled ‘‘Training The student must prepare a formalized Plan for STEM OPT Students,’’ and not DHS received a number of comments Training Plan with the employer and ‘‘STEM OPT Mentoring and Training raising general concerns with the submit the plan to the DSO before the Plan’’ as DHS had originally proposed Mentoring and Training Plan, DSO may recommend a STEM OPT proposed.114 as well as related requirements. Such extension in the student’s SEVIS record. comments concerned the timelines If the student intends to request an ii. Standard of Review for Training Plan proposed for training plan submission extension based on a previously- Under this final rule, once the student and review, as well as requirements obtained STEM degree, the plan must be and the employer complete and sign the related to reporting changes of submitted to the institution that Training Plan, the student must submit employer. provided the student’s most recent the plan to the DSO. DSOs must review Comment. DHS received many degree (i.e., the institution whose the Training Plan to ensure that it is comments related to the training official is certifying, based on SEVIS or completed and signed, and that it programs and policies that many official transcripts, that a prior STEM addresses all program requirements. employers already have in place. These degree enables the student to continue USCIS maintains the discretion to comments expressed a range of his or her eligibility for practical request and review all documentation positions, from offering strong support training through a STEM OPT for eligibility concerns. A number of for the proposed Mentoring and extension). commenters requested additional Training Plan to suggesting more As noted in the proposed rule, DHS information about the standards under flexible training plan requirements to expects to incorporate the submission of which the DSO and DHS will review suggesting the elimination of training the Training Plan into SEVIS at a later plan requirements altogether. Some date. Until that time DHS may require 114 DHS has also finalized the form with a new commenters stated that the the submission of the Training Plan to number in response to public comments, as requirements for the proposed ICE or USCIS when the student seeks explained below in the discussion of comments Mentoring and Training Plan were below regarding the form fields, number, and certain benefits from USCIS, such as instructions. As noted throughout the rule, the form burdensome and unrealistic, that the when the student files an Application is now designated as Form I–983, Training Plan for proposed rule contained confusing for Employment Authorization during a STEM OPT students. references to the F–1 student’s role in

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00052 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13091

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00053 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13092 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00054 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13093

Finally, DHS respectfully disagrees programs,’’ asserted that the proposed which the commenter suggested should with the notion that students who have rule failed to define mentoring. The be outside the DSO’s duties. The completed one year of OPT are commenter explained that: commenter stated that the requirement ‘‘seasoned trainees’’ who should not be some mentoring relationships are highly for a new DSO recommendation each subject to the training plan requirements structured in content and regularity of time the student changes employers when seeking an extension under the interactions, while others are more ad hoc ‘‘implies’’ that the STEM extension is rule. DHS also disagrees that students and organic in nature. In many employer specific. The commenter pursuing a STEM OPT extension with circumstances, it is the mentee who takes suggested that STEM OPT should not be the same employer should be exempt responsibility for leading the interactions; in tied to a specific employer, but should from the reporting obligations of the others, it is the mentor or the organization be tied solely to the student’s field of who structures the engagement. rule, including all training plan study. Another commenter stated that requirements. As discussed, the purpose This commenter believed it would not the requirement for DSOs to issue a new of the STEM OPT extension is to be feasible for DHS to provide sufficient STEM OPT recommendation served no provide practical training to STEM certainty to employers about their particular purpose, and that the students so they may pursue focused mentoring responsibilities and requirement could increase the research and meaningful projects that obligations. A comment co-signed by likelihood that an employer might contribute to a more complete ten associations representing a variety of choose to hire a STEM OPT student over understanding of their fields of study industries, as well as small, medium, a U.S. worker. According to the and help develop skills. The and large businesses and professionals, commenter, such a STEM OPT student requirements of the Training Plan are stated that the proposed Mentoring and would be less likely to change designed to assist students and Training Plan would ‘‘in many cases employers during the STEM OPT employers in their pursuit of the force companies to make drastic period, which could lead to exploitation aforementioned goals. changes to their current mentoring of the student by the employer. Comment. Some commenters stated programs.’’ Response. To ensure proper oversight concerns about the ‘‘mentoring’’ Response. In light of the commenters’ and promote the continued integrity of requirements described in the proposed concerns, DHS has removed reference the STEM OPT extension program, DHS Mentoring and Training Plan. For to, and the requirements related to, declines to make the changes requested. example, a commenter expressed mentoring in the final rule and When a student changes employers, the concern that formalizing mentoring and associated Training Plan. For instance, requirement to submit a new Training training requirements could hinder DHS has removed the reference to Plan to the DSO and have the DSO students’ ability to naturally develop ‘‘mentoring’’ in Form I–983 and re- update SEVIS with a new mentorships and mentoring designated it as the ‘‘Training Plan for recommendation is necessary for relationships, and suggested eliminating STEM OPT Students.’’ The Training ensuring that DHS has the most up-to- the proposed Mentoring and Training Plan, however, continues to serve the date information on F–1 students. The Plan requirement or, at least, aligning core goal of the practical training requirement also ensures that STEM the proposed Mentoring and Training program: to augment a student’s OPT students are receiving the Plan requirement with current employer learning and functionality in his or her appropriate training and compensation, practices to minimize compliance chosen field of interest. which in turn helps to protect such burdens. Some employers stated that the DHS disagrees with the suggestion students and U.S. workers. As noted references to mentoring were so that technology companies do not have previously, SEVIS is the real-time problematic that the proposed robust training capabilities or a database through which the Department Mentoring and Training Plan be commitment to training and skill tracks F–1 student activity in the United dropped altogether. One commenter development. This comment is directly States. Timely review by the DSO of the stated that many technology companies contradicted by the many comments new Training Plan and timely updating lack expertise in establishing the kind of filed by employers asking that company of SEVIS with certain information from mentoring program contemplated in the policies on training, mentoring, and that form substantially assists DHS with proposed rule. The commenter stated evaluation already in place be permitted meeting its statutory requirements further that, because of this, some as an alternative to the training plan related to F–1 students. technology companies will likely requirements in the proposed rule. DHS also does not agree that the submit whatever paperwork is necessary Comment. A few commenters requirements related to changing to demonstrate compliance with the suggested that DSOs should not be employers, including obtaining a new mentoring requirement, without doing required to issue a new STEM OPT DSO recommendation, are so more. Another commenter suggested recommendation in SEVIS before a burdensome that they would cause a eliminating the reference to mentoring student can change employers during STEM OPT student to stay with an and instead focusing on ‘‘the relevance the STEM OPT extension period. A employer that is exploiting him or her. of the proposed employment to the university recommended that it should Among other things, this rule provides individual’s STEM-related course of be sufficient for the student to submit a substantial amount of time for study.’’ the new Training Plan to the DSO, along students to find new practical training A number of employers stated that with an update to the employer address opportunities. And DHS anticipates that they had long established practices information in SEVIS, as specified in most cases, DSOs will be able to concerning mentoring, some formal and under current SEVIS reporting review a newly submitted Training Plan some not. Most of these comments requirements. Similarly, a school and issue a new recommendation for a suggested that what DHS proposed official asked whether an update in STEM OPT extension in a matter of regarding mentoring was difficult to STEM employment information, rather days. For this reason, when a student understand in the context of existing than a recommendation, would suffice changes employers, the rule requires a business practices. For example, one for such purposes. The commenter new Training Plan, new DSO company that said it was strongly stated that a recommendation should be recommendation, and update to SEVIS. committed to ‘‘the importance and required only if the DSO is expected to DHS acknowledges that the potential benefits of well-designed mentoring review the content of the Training Plan, exists for a student to begin a new

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00055 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13094 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00056 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13095

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00057 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13096 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

and of which he or she will already sufficient level of particularity for this Response. As noted above, the DSO’s have some record. Where this is not the purpose. role with respect to the Training Plan case, the DSO can still rely, as he or she Beyond the clarifications provided for STEM OPT Students is limited. can in all cases, upon the information above, DHS does not believe it is DSOs are not expected to conduct provided on the Training Plan and any necessary or appropriate to issue independent research to determine other information the DSO believes to significant additional guidance in this whether an employer attestation or be pertinent to his or her final rule. Given the many different other information in the Training Plan, recommendation decision, at the time practical training opportunities including wage information, is accurate. he or she makes the recommendation. available to students, it would be Thus, DSOs are not expected to assess DHS also disagrees with comments cumbersome for DHS to define with the wage information. With respect to suggesting that DSOs have conflicts of more particularity the full range of validation reports, such reports have interest with respect to reviewing student-employer interactions or served since 2008 as important training plans. Based on decades of guided-learning opportunities that may confirmations that critical student experience with OPT, DHS has no meet the rule’s requirements. DHS information in SEVIS is current and reason to question the integrity of DSOs believes that it would be more accurate. When a student fails to submit or their ability to fulfill their obligations appropriate to issue any necessary a validation report on a timely basis, effectively and maintain the integrity of guidance separately, as needed. Issuing however, there is no requirement for the STEM OPT extension program. The guidance in this manner will allow DHS further action on the part of the DSO. role of DSOs under this program is to promote consistent adjudications All necessary data for determining when similar to the role they have historically while allowing for flexibility as issues a student has failed to submit a played in the F–1 program. develop. As such, DHS confirms that validation report is contained in SEVIS, DHS also notes that it may, at its ICE and USCIS will finalize guidance and no further action is necessary to discretion, withdraw a previous and provide training to ensure that all alert DHS of the student’s failure. submission by a school of any entities are ready to process requests for iii. Form Fields, Form Number, Form individual who serves as a DSO. See 8 STEM OPT extensions as soon as Instructions CFR 214.3(1)(2). Additionally, under possible. longstanding statutes and regulations, Comment. Some commenters Comment. Some commenters stated SEVP may withdraw on notice any suggested that employers and students, that USCIS already has a form school’s participation in the F–1 student rather than DSOs or DHS, are best designated as Form I–910, Application program (or deny such a school positioned to explain how a student’s for Civil Surgeon Designation, and recertification) for any valid and STEM degree is related to a practical requested that ICE assign a different substantive reason. See 8 CFR training opportunity. form number to the Training Plan form. 214.4(a)(2). For instance, SEVP may Response. DHS agrees that employers Another commenter suggested that DHS withdraw certification or deny and students must identify the use a form number other than I–910 to recertification if SEVP determines that a relationship between the student’s avoid confusion with the current Form DSO willfully issued a false statement, STEM degree and the practical training I–901, which all F–1 students use to pay including wrongful certification of a opportunity. This final rule requires the their SEVIS fees. statement by signature, in connection student and employer to complete and Response. In response to these with a student’s application for submit to the DSO a Training Plan that comments, DHS has revised the number employment or practical training. See describes this relationship (among other for the Training Plan for STEM OPT id. SEVP may take the same action if it things). DHS does not agree, however, Students associated with this final rule determines that a DSO engaged in that students and employers should be to ‘‘Form I–983.’’ This change should conduct that does not comply with DHS solely responsible for determining prevent confusion among F–1 students regulations. Id. whether a student’s STEM degree is and other stakeholders. With respect to comments about directly related to the practical training Comment. As proposed, the USCIS’s role in the process, DHS opportunity being offered, as doing so Mentoring and Training Plan would clarifies that USCIS maintains the would result in a true conflict of interest have required the student to attest that discretion to request and review all and lack of accountability. he or she will notify the DSO ‘‘at the documentation when determining Comment. One commenter expressed earliest possible opportunity if I believe eligibility for benefits. See 8 CFR concern that DSOs will be required to that my employer or supervisor . . . is 103.2(b)(8)(iii). Accordingly, USCIS may check wages through the Department of not providing appropriate mentorship request a copy of the Training Plan (if Labor Foreign Labor Certification Data and training as delineated on this Plan.’’ it is not otherwise available) or other Center’s Online Wage Library to ensure Some commenters recommended that documentation when such that the employee is being paid fairly. the student attestation on the Training documentation is necessary to The commenter stated that such a Plan form be revised to eliminate the determine an applicant’s eligibility for requirement would add additional time words ‘‘if I believe’’ and ‘‘appropriate’’ the benefit, including instances when to approval of training plans and could because they are confusing and ask there is suspected fraud in the expose schools to legal action from students to make subjective assessments application.115 DHS further clarifies that employers and students who submitted regarding the required training and USCIS would deny an Application for plans that were not accepted by the mentoring. Commenters suggested that Employment Authorization if it finds school. The commenter also said DSOs the student should only be required to that any of the regulatory standards are would be required to function as de notify the DSO if the student believes not met. DHS believes that the facto USCIS adjudicators when that ‘‘a gross deviation’’ from the regulatory standards are articulated at a approving or denying training plans, training plan has occurred. Another and as de facto ICE agents when trying commenter stated that this notification requirement was not necessary because 115 When Training Plans are available through to locate a student who has not SEVIS, USCIS will have real-time access to each completed his or her 6-month validation students are already required to report plan without needing to issue an RFE. report. any interruption of employment.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00058 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13097

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00059 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13098 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

did not explain how the plan violated concerns related to this provision did practical training. Commenters also the statute. not identify any feature of the proposed stated that the 60-day filing deadline Response. As a preliminary matter, rule that would deny or otherwise would provide greater flexibility for the Training Plan for STEM OPT impair any person’s rights ‘‘to make and students and likely reduce the workload Students requires an employer to certify enforce contracts’’ or any other rights of DSOs, who would otherwise need to that the training conducted pursuant to described in the statute. The statute has reissue Form I–20 Certificates of the plan complies with all applicable no bearing on the training plan Eligibility to students whose forms have Federal and State requirements relating requirement in this rule. expired, as well as reduce the number to employment. This broad certification of Applications for Employment G. Application Procedures for STEM encompasses compliance with all of the Authorization that need to be filed. OPT Extension laws the commenters referenced. Some commenters so strongly supported DHS also disagrees with the apparent 1. Description of Final Rule and the 60-day deadline that they requested premise behind the commenters’ Changes From NPRM it apply to all students requesting OPT arguments. That premise appears to be Under the rule, a student seeking an in any academic field, noting that that the rule will require or having two different application filing inappropriately induce U.S. employers extension must properly file a Form I– 765, Application for Employment windows serves no useful purpose and to provide benefits to F–1 students that also has the potential to confuse both are not provided to its other employees, Authorization, with USCIS within 60 days of the date the DSO enters the students and adjudicators. including U.S. workers. Neither the rule Response. DHS agrees that no nor the Training Plan, however, requires recommendation for the STEM OPT extension into the SEVIS record. The revisions to the Application for or encourages employers to exclude any Employment Authorization are needed of their employees from participating in 2008 IFR had previously established a time period of 30 days after the DSO and that any minor revisions should be training programs. And insofar as an incorporated into the form instructions. employer may decide to offer training recommendation for the filing of the DHS also appreciates commenters’ required by the regulation only to STEM Application for Employment support for the proposed 60-day filing OPT students, doing so does not relieve Authorization. As proposed in the period for students to file their that employer of any culpability for NPRM, DHS believes the longer 60-day Application for Employment violations of section 274B of the INA, 8 application period will, among other Authorization after the DSO enters the U.S.C. 1324b, or any other federal or things, reduce the number of USCIS STEM OPT extension recommendation state law related to employment. denials of such applications that result Moreover, the training plan from expired Form I–20 Certificates of in SEVIS. This final rule includes this requirement is not motivated by any Eligibility, the number of associated proposal. As noted in the proposed rule, intention on the part of DHS to data corrections needed in SEVIS, and the longer filing window addresses encourage employers to treat STEM OPT the number of students who would need problems that resulted from expiration students preferentially. Rather, DHS is to ask DSOs for updated Certificates of of Form I–20 Certificates of Eligibility requiring the Training Plan to obtain Eligibility to replace those that have and reduces the need for data sufficient information to ensure that any expired. Under this rule, the ‘‘time of corrections in SEVIS. DHS also clarifies extension of F–1 student status under application’’ for a STEM OPT extension that this change only applies to STEM this rule is intended to augment the refers to the date that the Application OPT extensions. Changing the 30-day student’s academic learning through for Employment Authorization is filing period for students seeking a 12- practical experience and equip the properly filed at USCIS. month period of post-completion OPT is student with a broader understanding of outside the scope of this rulemaking. 2. Public Comments and Responses the selected area of study and Comment. One commenter advocated functionality within that field. The Comment. Several commenters agreed for students to be able to file only one Training Plan also serves other critical with DHS’s assessment in the proposed Application for Employment functions, including, but not limited to, rule that no changes to Form I–765, Authorization to cover the entire OPT improving oversight of the STEM OPT Application for Employment period, including the 12-month post extension program, limiting abuse of on- Authorization, are needed. These completion period and the 24-month the-job training opportunities, commenters thought that the STEM OPT extension period. In support strengthening the requirements for application form is clear and that any of this suggestion, the commenter noted STEM OPT extension participation, and minor changes or clarifications (such as that the application form already enhancing the protection of U.S. the regulatory cite included on the form) requires the applicant to reveal all workers. By documenting the student’s should be incorporated into the previously filed Applications for participation in a training program with instructions to the application rather Employment Authorization and the employer, the Training Plan than into the application itself. Many provides an opportunity to request a provides information necessary for commenters also agreed with DHS’s STEM OPT extension. The commenter oversight, verification, tracking, and proposal to extend the period of time to also suggested that such form should be other purposes. file the Application for Employment available to request a second STEM OPT The training plan requirement does Authorization from 30 to 60 days from extension. Another commenter not discriminate against U.S. students or the date that the DSO enters the STEM requested that the $380 fee for filing anyone else, or create a discriminatory OPT extension recommendation in Applications for Employment contract (even assuming that it creates a SEVIS. Some of these commenters Authorization not apply to students contractual obligation at all). In stated that it can be challenging for seeking STEM OPT extensions. The pertinent part, 42 U.S.C. 1981(a) DSOs and students to meet the current commenter characterized the fee as provides that ‘‘[a]ll persons within the 30-day deadline, as STEM OPT students generally a ‘‘heavy burden’’ for students, jurisdiction of the United States shall are already working at the time of and as an ‘‘unreasonable’’ burden for have the same right in every State and application and may no longer be as those students who failed to meet the Territory to make and enforce close in proximity or contact with their eligibility requirements for reasons contracts.’’ The commenter that raised DSOs as they were prior to starting beyond their control.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00060 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13099

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00061 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13100 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

her 24-month STEM OPT extension H. Travel and Employment proposed, noting that it would help the period. Authorization Documentation of Certain United States attract talented Comment. One commenter F–1 Nonimmigrants Changing Status in international students and bolster the recommended that the rule increase the the United States or on a STEM OPT economy. Some stated that Cap-Gap relief was an important part of the 2008 time period during which a student Extension IFR and requested that it be retained with a pending STEM OPT application 1. Description of Final Rule and because the H–1B visa program is a is allowed to remain employed. The Changes From NPRM common mechanism for F–1 students to proposed rule provided an automatic This final rule includes the 2008 IFR’s transition to long-term employment in extension of employment authorization Cap-Gap provision, which allows for the United States. According to the of up to 180 days upon the timely filing automatic extension of status and commenters, Cap-Gap relief is essential of the application for a STEM OPT employment authorization for any F–1 to avoid gaps in work authorization extension. The commenter suggested student with a timely filed H–1B between the April filing window for H– amending the rule to provide a 240-day petition and request for change of status, 1B visas and the October 1 start date for period, which the commenter believed if the student’s petition has an most new H–1B beneficiaries who are would be consistent with a similar employment start date of October 1 of subject to the H–1B cap. provision for other nonimmigrants who the following fiscal year. The measure Some commenters supported Cap-Gap timely file applications for extensions of avoids inconvenience to some F–1 relief for certain F–1 students based on stay.116 According to the commenter, students and U.S. employers through a the notion that these students have been employers are familiar with the 240-day common-sense administrative following immigration laws and helping period provided in other contexts and mechanism to bridge two periods of to maintain the United States’ position using a common timeframe for STEM authorized legal status. As noted as the world’s leader in technology and OPT applications would help employers previously, the so-called Cap Gap is a innovation. Other supporters asserted that Cap-Gap relief will boost more efficiently maintain their result of the misalignment of the productivity and entrepreneurship and obligations to verify the eligibility of academic year with the fiscal year. thus provide the United States with a employees to work in the United States This final rule also clarifies that an EAD that appears to have expired on its competitive advantage in the global through the Form I–9 Employment market. Several commenters stated that Eligibility Verification process. The face but that has been automatically extended under 8 CFR the Cap-Gap extension is helpful to commenter also noted that the 240-day 274a.12(c)(3)(i)(B) is considered employers as it avoids disruptions in period would better accommodate unexpired for the period beginning on the workplace caused by the students’ lengthy USCIS processing times. the expiration date listed on the departure from the United States solely Response. DHS has determined that Employment Authorization Document due to a temporary gap in status. the current period of up to 180 days is and ending on the date of USCIS’ Response. DHS agrees with appropriate and will not adopt the written decision on the current commenters that the Cap-Gap provision commenters’ suggestion to lengthen this employment authorization request, but is a common-sense administrative period. DHS did not propose any not to exceed 180 days, when combined measure to avoid gaps in status fully consistent with the underlying purpose changes to this 180-day period, which with a Form I–20 Certificate of of the practical training program. The has been in existence since 2008. Eligibility endorsed by the DSO Cap-Gap provision is needed to address Employers who hire individuals on recommending the Cap-Gap extension. Otherwise, DHS is finalizing the Cap- the inherent misalignment of the STEM OPT extensions should thus academic year with the fiscal year. This Gap provision as proposed, but provides already be familiar with this timeframe. relief measure avoids inconvenience to clarification and explanation below in Moreover, given that USCIS’ average some F–1 students and U.S. employers response to public comments regarding EAD processing time is typically at by bridging short gaps in status for status, travel, and employment about the 90-day mark,117 the 180-day students who are the beneficiaries of H– authorization during a Cap-Gap period timeframe provides sufficient flexibility 1B petitions. in case of unexpected delays. Therefore, or a STEM OPT extension. Comment. Under the 2008 IFR and as Lastly, the final rule clarifies that if a a longer auto-extension period for EADs proposed, the Cap-Gap provision petitioning employer withdraws an H– is unnecessary. automatically extends a qualifying 1B petition upon which a student’s Cap- student’s status and employment Gap period is based, the student’s Cap- 116 authorization based on the filing of an 8 CFR 274a.12(b)(6)(iv) authorizes Gap period will automatically employment for students seeking a STEM OPT H–1B petition and request for change of extension if they timely file an Application for terminate. In other words, if an status until the first day of the new Employment Authorization and such application employer withdraws the H–1B petition fiscal year (October 1). Some remains pending. Employment is authorized before it is approved, the student’s commenters requested that DHS revise beginning on the expiration date of the student’s automatic extension of the student’s the Cap-Gap provision so as to OPT-related EAD and ending on the date of USCIS’ duration of status and employment automatically extend status and written decision on the Application for authorization under the Cap-Gap employment authorization ‘‘until Employment Authorization, but not to exceed 180 provision will automatically end, and days. In contrast, 8 CFR 274a.12(b)(20) allows adjudication of such H–1B petition is certain nonimmigrants (not including F–1 students) the student will enter the 60-day grace complete.’’ Commenters stated that an whose statuses have expired but who have timely period to prepare for departure from the extension until October 1 may have filed applications for an extension of stay to United States. 8 CFR 214.2(f)(5)(iv). been appropriate in the past, when H– continue employment with the same employer for 2. Public Comments and Responses 1B petitions were adjudicated well a period not to exceed 240 days beginning on the before that date, but current USCIS date of the expiration of the authorized period of i. Inclusion of Cap-Gap Relief and End workload issues and RFE responses can stay. Date of Cap-Gap Authorization 117 For updated processing times, please see delay such adjudications beyond ‘‘USCIS Processing Time Information,’’ available at Comment. Many commenters October 1. The result, according to one https://egov.uscis.gov/cris/processTimesDisplay.do. supported the Cap-Gap provision as commenter, is that the beneficiary of an

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00062 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13101

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00063 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13102 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

to bridge status until the next fiscal regarding travel and reentry to the outlined in its Foreign Affairs year. For these reasons, the Cap-Gap United States in Cap-Gap scenarios. The Manual.121 provision benefits only those commenter opined that the two DHS also notes that if an F–1 student beneficiaries who are subject to the H– Departments’ policies on this issue have travels abroad before his or her H–1B 1B cap. DHS maintains its long-standing been inconsistent, recommending this change-of-status petition has been interpretation that 8 CFR 214.2(f)(5)(vi) rulemaking as an appropriate approved, USCIS will deem the petition is limited to cap-subject H–1B opportunity to clarify when an F–1 abandoned. Consequently, such a beneficiaries, but has revised the student in a Cap-Gap period may travel. student no longer would be authorized regulatory text to clarify this practice. Another commenter suggested that the for F–1 status during the Cap-Gap Comment. One commenter asked DHS guidance in the Department of State period based on the H–1B change-of- to clarify the deadline for filing Foreign Affairs Manual (9 FAM 41.61 status petition and thus would be applications for STEM OPT extensions N13.5–2 Cap Gap Extensions of F–1 unable to rely on the Cap-Gap by F–1 students in a Cap-Gap period. Status and OPT) could serve as the basis provision’s extension of duration of According to the commenter, the for a unified policy among the two status for purposes of seeking relevant section in the proposed rule departments that allows travel and readmission as an F–1 student. This has indicated that students are required to reentry during the Cap-Gap period.120 been the legacy INS and USCIS file ‘‘prior to the expiration date of the One commenter also asked DHS to interpretation of its change-of-status student’s current OPT employment allow a Cap-Gap beneficiary to return to authority under the INA for decades, authorization.’’ The commenter asked the United States in F–1 status without applicable to all changes from one DHS to clarify the meaning of this having a valid visa. nonimmigrant status to another, not just provision with respect to F–1 students those involving F–1 nonimmigrants.122 with an approved Cap-Gap extension. Response. DHS clarifies that an F–1 As such, DHS declines to adopt the Specifically, the commenter asked student may generally travel abroad and suggestion to allow travel for Cap-Gap whether ‘‘the expiration date of the seek readmission to the United States in students while a change-of-status student’s current OPT employment F–1 status during a Cap-Gap period if: petition is pending.123 authorization’’ refers to the date on (1) The student’s H–1B petition and Comment. Some commenters stated which the student’s EAD expires or the request for change of status has been that certain documentary requirements end date of the student’s approved Cap- approved; (2) the student seeks in DHS regulations unnecessarily Gap extension. readmission before his or her H–1B hampered a student’s mobility. Such Response. A student may file for a employment begins (normally at the commenters specifically cited 8 CFR STEM OPT extension only if the student beginning of the fiscal year, i.e., October 214.2(f)(13)(ii), which allows an is in a valid period of post-completion 1); and (3) the student is otherwise otherwise admissible F–1 student with OPT at the time of filing. A student admissible. However, as with any other an unexpired EAD issued for post- whose post-completion OPT period has instance in which an individual seeks completion practical training to return been extended under Cap-Gap is in a admission to the United States, to the United States to resume valid period of post-completion OPT, admissibility is determined at the time employment after a period of temporary and may therefore apply for a STEM the individual applies for admission at absence. Under this provision, the EAD OPT extension during the Cap-Gap a port of entry. U.S. Customs and Border must be used in combination with an I– period if he or she meets the STEM OPT Protection (CBP) makes such 20 Certificate of Eligibility endorsed for 119 extension requirements. Please note, determinations after examining the reentry by the DSO within the last six however, that if the H–1B petition upon applicant for admission. Students months. Some commenters claimed that which the student’s Cap-Gap period is should refer to CBP’s Web site (http:// this requirement resulted in DHS based has been approved and is not www.cbp.gov/travel/international- officers rejecting facially expired EADs withdrawn prior to October 1, the visitors/study-exchange/exchange- at port of entries—despite the student’s change to H–1B status will arrivals) for a list of the appropriate presentation of other documents take effect on October 1, and the student documentary evidence required to indicating valid employment will no longer be eligible for a STEM confirm eligibility for the relevant OPT extension. classification. Moreover, DHS believes 121 See 9 FAM 402.5–5(N)(6)(f), available at ii. Travel During Cap-Gap and While on that the guidance provided in this https://fam.state.gov/FAM/09FAM/ response is fully consistent with the 09FAM040205.html. STEM OPT Extension 122 Department of State’s Cap-Gap policy as See INA Sec. 248(a), 8 U.S.C. 1258(a) Comment. Several commenters (providing that USCIS, in its discretion, may requested that DHS allow students to authorize a change from any nonimmigrant 120 9 FAM 402.5–5(N)(6)(f) (previously 9 FAM classification to any other nonimmigrant travel abroad during the Cap-Gap 41.61 N13.5–2) provides that if an F–1 student is classification in the case of any alien lawfully period. Some of these commenters the beneficiary of a timely filed petition for a cap- admitted to the United States as a nonimmigrant requested that F–1 students in OPT be subject H–1B visa, with a start date of October 1, who is continuing to maintain that status). See also allowed to travel overseas if they have the F–1 status and any OPT authorization held on INS memo HQ 70/6.2.9 (June 18, 2001 memo noting the eligibility date is automatically extended to that it has long been Service policy deny a request a pending or approved request to change dates determined by USCIS allowing for receipt or for change of status where an alien travels outside status to that of an H–1B nonimmigrant approval of the petition, up to September 30. The of the United States while a request for a change during the Cap-Gap period. One Cap-Gap OPT extension is automatic, and USCIS of status is pending); Letter from Jacquelyn A. commenter asked DHS to harmonize will not provide the student with a renewed EAD. Bednarz, Chief, Nonimmigrant Branch, However, F–1 students in this situation can request Adjudications, INS, CO 248–C (Oct. 29, 1993), policies with the Department of State an updated Form I–20 Certificate of Eligibility from reprinted in 70 Interp. Rel. 1604, 1626 (Dec. 6, the DSO, annotated for the Cap-Gap OPT extension, 1993). 119 A student in Cap-Gap who meets the as well as proof that the Form I–129, Petition for 123 An individual who travels while his or her H– eligibility requirements for a 24-month STEM OPT a Nonimmigrant Worker, was filed in a timely 1B petition and request for change of status is extension may file his or her Application for manner. Consular officers must verify that the pending would be required to apply for an H–1B Employment Authorization, with the required fee electronic SEVIS record has also been updated visa at a consular post abroad (unless visa-exempt) and supporting documents, up to 90 days prior to before issuing a visa. See 9 FAM 402.5–5(N)(6)(f), in order to be admitted to the United States in H– the expiration of the Cap-Gap period on October 1. available at https://fam.state.gov/FAM/09FAM/ 1B status, presuming the underlying H–1B petition 8 CFR 214.2(f)(11)(i)(C). 09FAM040205.html. is approved.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00064 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13103

authorization—and denying entry to the student’s status is determined by CBP provided to STEM OPT students (under applicants. upon admission to the United States or the ‘‘Terms and Conditions’’ section). Response. The Department through a USCIS adjudication of a Such EADs currently contain the acknowledges that it has previously change-of-status petition. following notation: ‘‘Stu: 17-Mnth Stem cited 8 CFR 214.2(f)(13)(ii) in Comment. Several commenters raised Ext.’’ In response to the potential connection with travel during the Cap- the issue of whether F–1 nonimmigrants confusion described in the above Gap period. That regulatory provision may have ‘‘dual intent’’ (i.e., whether comments, however, DHS has decided addresses the validity period of EADs. such students, as F–1 nonimmigrants, to update the notation to provide a Following careful review, DHS has may simultaneously seek lawful stronger indication of the limitations of determined that 8 CFR 214.2(f)(13)(ii), permanent residence or otherwise have such EADs. Such EADs will now which expressly addresses the effects of the intent to immigrate permanently to contain the following notation: ‘‘STU: departure from the United States by the United States). Commenters that STEM OPT ONLY.’’ DHS believes this individuals with unexpired EADs, does supported dual intent for F–1 students new notation will better alert employers not apply to Cap-Gap beneficiaries, who stated that such a policy would help that the cardholder’s employment by definition have expired EADs. attract and retain talented F–1 students authorization is subject to certain Therefore, 8 CFR 214.2(f)(13)(ii) does in the United States. Certain conditions. not apply to F–1 students who depart commenters that opposed dual intent Comment. Another commenter the United States during a Cap-Gap for students stated that this rule should requested that DHS issue new EADs to period. be limited to maintaining F–1 status in OPT students with expired EADs who Comment. Several commenters order to allow students to gain post- either are in a Cap-Gap period or have requested that DHS allow students to graduate practical experience and a pending application for a STEM OPT travel abroad during the STEM OPT training in their fields of study. Other extension. The commenter stated that extension period or during the such commenters asserted that dual these new EADs would allow such pendency of an application for such an intent for students would violate students to renew their driver’s licenses extension. One commenter stated that Congressional intent and run counter to and thus facilitate their work commute. although the F–1 visa is a multiple entry the F–1 visa classification provisions in In the alternative, the commenter visa, the Form I–20 Certificate of the INA. See INA 101(a)(15)(F)(i). requested that USCIS issue these Eligibility states that a STEM OPT Response. These comments, which students formal documents that would student’s EAD is not valid for reentry concern dual intent for F–1 students allow them to renew their driver’s into the United States. The commenter generally, are beyond the scope of this licenses. requested that DHS allow STEM OPT rulemaking. The changes in this rule Response. Under current processes, students to make multiple entries based affect only those F–1 students applying USCIS cannot issue new EADs to F–1 on their status. The commenter noted for STEM OPT extensions or Cap-Gap students with pending applications that this would allow such students to extensions, not the entire F–1 student without adversely affecting fee revenues visit their home countries at least once population. Moreover, none of the and overall EAD processing times. during the up-to-three-year period of changes in this rule relate to individuals Under current guidance in the practical training. seeking lawful permanent resident Handbook for Employers (M–274), the Similarly, some commenters status or their ability to hold immigrant combination of the student’s expired requested that DHS permit F–1 students intent while holding nonimmigrant EAD and his or her Form I–20 to travel during the pendency of a status. Certificate of Eligibility endorsed by the designated school official is acceptable request for a STEM OPT extension and iii. Terms and Conditions of proof of identity and employment to reenter after a period of temporary Employment Authorization Documents absence. Another commenter authorization for purposes of Form I–9 Comment. A few commenters requirements. In response to the above recommended that students with requested that DHS include written comments, however, DHS has decided pending applications for STEM OPT restrictions on the face of the EADs to clearly articulate this policy by extensions be permitted to travel provided to STEM OPT students. updating the regulation at 8 CFR outside the United States because many Commenters stated that all EADs, 274a.12(b)(6)(iv) to indicate that this employers require their employees to including STEM OPT EADs, appear on combination of documents is considered engage in international travel as part of their face to be valid for unrestricted an unexpired EAD for purposes of their jobs. The commenter noted that employment. Commenters were complying with Form I–9 requirements. the proposed rule prohibits such concerned that if a job candidate DHS believes the regulatory change students from fulfilling such job presents an EAD to complete the Form clearly articulates that students with the requirements. I–9 process, an employer will not know appropriate documents remain in F–1 Response. Students on STEM OPT whether the underlying employment status and are authorized for extensions (including those whose authorization is actually limited to employment. application for a STEM OPT extension employment with an E-Verify employer Comment. One commenter is pending) may travel abroad and seek in a field related to the student’s STEM recommended that DHS clarify whether reentry to the United States in F–1 degree. Because of this confusion, EADs would be revoked if the status during the STEM OPT extension commenters believed it was possible Mentoring and Training Plan described period if they have a valid F–1 visa that 124 that an employer could hire a STEM in the proposed rule were to require permits multiple entries and a OPT student whose employment modification or the insertion of current Form I–20 Certificate of authorization was in fact linked in additional information subsequent to Eligibility endorsed for reentry by the SEVIS to a different employer. These the commencement of the STEM OPT DSO within the last six months. The commenters requested that DHS address student’s employment. this issue by adding a written restriction Response. As noted in section IV.B. of 124 Department of State consular officers determine whether an F–1 visa is valid for multiple on the EAD itself. this preamble, if any material change to or single entries, which is generally based on Response. DHS already places written or deviation from the Training Plan reciprocity. restrictions on the face of the EADs occurs, the student and employer must

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00065 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13104 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

sign a modified Training Plan reflecting DSO. Generally, under 8 CFR for a 24-month STEM OPT extension the material changes or deviations, and 214.2(f)(11)(i), a student must initiate have been met. must ensure that the modified plan is the OPT application process by iii. Students With Valid, Unexpired 17- submitted to the student’s DSO at the requesting a recommendation for OPT Month STEM OPT Employment earliest available opportunity. So long by his or her DSO. Thus, a DSO’s Authorization on May 10, 2016 as the student and employer meet the recommendation for OPT on a Form I– regulatory requirements, and the 20 Certificate of Eligibility is generally Any 17-month STEM OPT EAD that is modified Training Plan meets the not recognized as valid if such issued before May 10, 2016 will remain requirements under this rule, the endorsement is issued after the valid until the EAD expires or is student’s employment authorization Application for Employment terminated or revoked. See 8 CFR will not cease based on a change to the Authorization is filed with USCIS. DHS, 214.16(c)(1).125 As a transitional plan. however, will consider the submission measure, starting on May 10, 2016, of the Form I–20 Certificate of Eligibility certain students with such EADs will I. Transition Procedures as valid if the form is submitted in have a limited window in which to 1. Description of Final Rule and response to the RFE that has been issued apply for an additional 7 months of Changes From NPRM under the transition procedures OPT, effectively enabling them to described in 8 CFR 214.16. benefit from a 24-month period of STEM The 17-month STEM OPT regulations DHS recognizes that following this OPT. See 8 CFR 214.16(c)(2). To qualify remain in force through May 9, 2016. rule’s effective date, some students may for the 7-month extension, the student This rule is effective beginning on May prefer to withdraw their pending must satisfy the following requirements: 10, 2016. This rule includes procedures application for a 17-month STEM OPT • The STEM OPT student must properly to allow for a smooth transition between extension and instead file a new the old rule and the new rule, as file an Application for Employment application for a 24-month STEM OPT Authorization with USCIS, along with discussed below. extension. Before a student decides to applicable fees and supporting i. STEM OPT Applications for do so, however, the student should documentation, on or before August 8, 2016, Employment Authorization Pending on understand the applicable filing and within 60 days of the date the DSO May 10, 2016 deadlines and ensure that he or she does enters the recommendation for the 24-month not lose F–1 status. Importantly, a STEM OPT extension into the student’s DHS will continue to accept and student may file for a STEM OPT SEVIS record. See 8 CFR 214.16(c)(2)(i). DHS believes that the 90-day window for filing adjudicate applications for 17-month extension only if the student is in a STEM OPT extensions under the 2008 such applications provides sufficient time for valid period of post-completion OPT at students to submit a required Training Plan, IFR through May 9, 2016. The the time of filing. Thus if a student Department, however, has modified the obtain the necessary Form I–20 Certificate of withdraws an application for a STEM Eligibility and recommendation from the transition procedures in the proposed OPT extension after his or her period of student’s DSO, and fulfill other requirements rule for adjudicating those applications post-completion OPT has ended, the for the 24-month extension. that remain pending when the final rule student will no longer be eligible to file • The student must have at least 150 takes effect on May 10, 2016. In the for a STEM OPT extension. calendar days 126 remaining prior to the NPRM, DHS had proposed that USCIS expiration of the 17-month STEM OPT EAD would adjudicate pending applications ii. Applications for 24-Month STEM at the time the Application for Employment using the regulations that existed at the OPT Authorization is filed. See 8 CFR time the applications were submitted. 214.16(c)(2)(ii). This 150-day period DHS will begin accepting applications guarantees that a student who obtains an As discussed further below, DHS has for STEM OPT extensions under this additional 7-month extension will have at reconsidered its original proposal in rule on May 10, 2016. Beginning on that least 1 year of practical training under the light of comments received, and will date, DHS will process all Applications enhancements introduced in this rule, instead apply the requirements of this for Employment Authorization seeking including site visits, reporting requirements, rule to such pending cases. Beginning 24-month STEM OPT extensions in and statement and evaluation of goals and on May 10, 2016, USCIS will issue RFEs accordance with the requirements of objectives. For students who choose to seek to students whose applications are still this rule. In other words, the final rule’s an additional 7-month extension, the new pending on that date. See 8 CFR new requirements will apply to all enhancements apply upon the proper filing 214.16(a). The RFEs will allow these STEM OPT students whose applications of the Application for Employment Authorization requesting the 7-month students to effectively amend their are pending or approved on or after the extension. See 8 CFR 214.16(c)(3). application to demonstrate eligibility for final rule is effective. • The student must meet all the 24-month extensions without incurring Thus, a student whose Application for requirements for the 24-month STEM OPT an additional fee or having to refile the Employment Authorization is filed and extension as described in 8 CFR Application for Employment approved prior to May 10, 2016 will be 214.2(f)(10)(ii)(C), including but not limited Authorization. issued an EAD that is valid for 17 to submission of the Training Plan to the Specifically, USCIS will issue RFEs months (even if he or she erroneously DSO. See 8 CFR 214.16(c)(2)(iii). STEM OPT requesting documentation that will requested a 24-month STEM OPT students applying for this additional 7-month establish that the student is eligible for extension). As indicated above, a extension must be in a valid period of OPT, a 24-month STEM OPT extension, student whose application is pending but are not required to be in a valid period of 12-month post-completion OPT authorized including a Form I–20 Certificate of on May 10, 2016 will be issued an RFE under 8 CFR 274a.12(c)(3)(i)(B) as would Eligibility endorsed on or after May 10, requesting documentation establishing 2016, indicating that the DSO that the student is eligible for a 24- 125 As explained previously, 17-month STEM recommends the student for a 24-month month STEM OPT extension. As OPT EADs currently have annotations placed in the STEM OPT extension. To obtain the described more fully below, this Terms and Conditions as follows: ‘‘Stu: 17-Mnth necessary DSO endorsement in the documentation must include, among Stem Ext.’’ 126 DHS recognizes that it proposed a 120-day Form I–20 showing that the student other things, a Form I–20 Certificate of period in the NPRM, but has determined for the meets the requirements of this rule, the Eligibility endorsed on or after May 10, reasons stated above that the 150-day period is Training Plan has to be submitted to the 2016, indicating that the requirements more appropriate.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00066 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13105

normally be required for a STEM OPT 2. Public Comments and Responses Submission of the Form I–20 in extension request. i. STEM OPT Applications for response to the RFE will be regarded as DHS believes that these requirements Employment Authorization Pending on fulfillment of the requirement, are necessary to ensure that those who May 10, 2016 contained in 214.2(f)(11)(i) of this receive the additional 7-month section, that a student must initiate the Comment. DHS received comments extension are covered by this rule’s OPT application process by requesting a requesting clarification on the improved compliance, reporting, and recommendation for OPT by his or her oversight measures. procedures that would apply to F–1 students whose applications for STEM DSO. See 8 CFR 214.16(a)(1). Moreover, unless and until a student OPT extensions are pending at the time Moreover, DHS will deem 17-month with a 17-month STEM OPT extension of the implementation of the final rule. STEM OPT applications that remain properly files the application for the 7- Response. As noted above, USCIS will pending on May 10, 2016, to be covered month extension under the transition issue RFEs to students whose procedures of 8 CFR 214.16, the student, by 8 CFR 214.2(f)(11)(i)(C) and 8 CFR applications for employment 274a.12(b)(6)(iv) of this rule. These and the student’s employer and DSO, authorization requesting a 17-month must continue to follow all the terms provisions state that if a student’s post- STEM OPT extension are pending on completion OPT expires while his or and conditions that were in effect when the effective date of this rule. By the 17-month STEM OPT employment her timely filed STEM OPT application responding to the RFE, students will is pending, the student will receive an authorization was granted. See 8 CFR have the opportunity to demonstrate automatic extension of employment 214.16(c)(1). Upon the proper filing of that they are eligible for a 24-month authorization of up to 180 days upon the application for the additional 7- STEM OPT extension without incurring month STEM OPT period, the student, an additional fee, or having to refile the the expiration of his or her current 127 and the student’s employer and DSO, Application for Employment employment authorization. See 8 CFR will be subject to all but one of the Authorization. 214.16(a)(2). requirements of the 24-month STEM Comment. Several commenters OPT extension period. The only ii. New Applications for STEM OPT expressed concern about the proposed Under This Rule exception concerns the period of USCIS adjudicative process for 17- unemployment available to such a month STEM OPT applications that Comment. Some commenters sought student. Under the rule, the 150-day remain pending on the effective date of clarification on whether a student in the unemployment limit described in 8 CFR the final rule. For example, one 60-day grace period following an initial 214.2(f)(10)(ii)(E) will apply to a student commenter noted that the proposed rule 12-month period of post-completion seeking a 7-month extension only upon indicated that DHS intended to OPT would be given the opportunity to approval of that extension. Thus, while adjudicate STEM OPT applications the application for the additional 7- apply for a STEM OPT extension if the ‘‘consistent with the regulations that new rule takes effect during the month extension is pending, the student existed at the time the application was student’s 60-day grace period. Some may not accrue an aggregate of more submitted.’’ The commenter was commenters asked whether there will be than 120 days of unemployment during concerned with the potential confusion the entire post-completion OPT period. that would arise if a DSO issued a 17- an additional grace period allowing If the application for the 7-month month STEM OPT recommendation students to come into compliance with extension is approved, the student may before the new rule’s effective date but the final rule once it is published. accrue up to 150 days of unemployment the student filed the Application for Response. This rule, like the 2008 during the entire OPT period. Employment Authorization after that IFR, does not allow students to apply for If an application for a 7-month date. In such a case, the commenter STEM OPT extensions during the 60- extension is approved, USCIS will issue added, the student’s Application for day grace period following an initial 12- an EAD with a validity period that starts Employment Authorization would not month period of post-completion OPT. on the day after the expiration date meet the applicable requirements at the The current requirement to properly file stated in the 17-month STEM OPT EAD. time of filing. The commenter the request for a STEM OPT extension If an application for a 7-month recommended that DHS instead use the prior to the end of the initial OPT extension is denied, the student, and the date of the DSO recommendation as the period allows sufficient time for the F– student’s employer and DSO, must, determinative factor as to which 1 student to apply for the extension and subsequent to denial, abide by all the regulatory requirements to apply. is administratively convenient as it terms and conditions that were in effect Response. DHS appreciates ensures continuing employment when the 17-month STEM OPT EAD commenters’ concerns about the authorization during the transition from was issued, including reporting possibility for confusion. To clarify, 17- requirements. See 8 CFR 214.16(c)(3). month STEM OPT applications that are the initial OPT period to the STEM OPT They must abide by such terms filed prior to, and remain pending on, period. Accordingly, if a student throughout the remaining validity May 10, 2016 will be processed in anticipates that he or she will enter the period of the 17-month STEM OPT accordance with the requirements of 60-day grace period before May 10, extension. this rule. As described above, USCIS 2016, the student should not wait to DHS recommends that students who will issue RFEs to students with such apply. Such a student should apply for choose to request the additional 7- pending applications. The RFE will the 17-month STEM OPT extension month extension obtain the necessary request documentation showing that the before his or her initial OPT period DSO recommendation and file their student meets the requirements of the expires. application as early as possible in 24-month STEM OPT extension. The advance of the August 8, 2016, documentation must include a Form I– 127 In addition, DHS considers students who application deadline. USCIS’s current 20 Certificate of Eligibility endorsed on apply for and are granted an additional 7-month processing times are available at https:// or after May 10, 2016, indicating that period of STEM OPT eligible for the Cap-Gap egov.uscis.gov/cris/ the DSO recommends the student for a provision described in section IV.H. of this processTimesDisplayInit.do. 24-month STEM OPT extension. preamble.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00067 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13106 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

iii. Students with Valid, Unexpired 17- categories of students who would be complete the Training Plan form, and 50 Month STEM OPT Employment affected by the new requirements for minutes to the estimate of DSO’s time Authorization on May 10, 2016. obtaining STEM OPT extensions. for the coordination and completion of Comment. Some commenters stated Several commenters asked DHS to each evaluation. DHS added two hours that a failure to promulgate a new rule clarify whether the new requirements to the estimate of employer’s time to prior to the vacatur of the 2008 IFR would apply to students on 17-month initially complete the Training Plan would result in negative impacts to STEM OPT extensions on the date the form, and 30 minutes to the estimate of students currently on 17-month STEM final rule becomes effective. One employer’s time for the coordination OPT extensions, as well as U.S. commenter asked whether students and completion of each evaluation. DHS currently on 17-month STEM OPT added 30 minutes to the estimate of employers and the U.S. economy. extensions would be permitted to student’s time for the coordination to Commenters stated that a regulatory gap complete their period of authorized initially complete the Training Plan would result in negative financial STEM OPT. form, and 30 minutes for the impacts for a great number of employers Response. As noted above, the new coordination and completion of each as well as several thousand students requirements apply only to STEM OPT evaluation. who will be at a risk of losing their applications that are pending on the As noted above, this final rule status. effective date of the final rule or that are includes a number of provisions Response. DHS has endeavored to submitted after that date. The new intended to minimize burden on have a final rule in place before the requirements do not affect current 17- employers while ensuring that the vacatur takes effect. DHS understands month STEM OPT beneficiaries, except Training Plan for STEM OPT Students the commenters’ concerns, but believes to the extent that such beneficiaries seek serves its stated purposes. For instance, that such concerns are now moot. to avail themselves of the additional 7- DHS has revised the regulatory text and Comment. Some commenters also month OPT period available to them the Training Plan form to clarify that asked whether, following the final rule’s under the transition provisions of the employers may rely on existing training effective date, students currently on 17- final rule. Students currently on 17- programs for STEM OPT students, so month STEM OPT extensions would be month STEM OPT extensions who do long as those programs satisfy this rule’s allowed to apply for a 24-month STEM not seek 7-month extensions will be requirements. Also in response to OPT extension. One commenter permitted to complete their authorized comments, DHS has clarified the form requested that existing 17-month 17-month STEM OPT period, barring instructions and various fields on the extensions automatically be extended to termination or revocation of their EAD form. Among other things, DHS has a 24-month period to reduce workload under 8 CFR 274a.14. During this time, removed the reference to ‘‘mentoring,’’ for both students and USCIS. Other the student, and the student’s employer which many commenters stated would commenters stated that students who and DSO, must continue to abide by all comprise a significant part of the received 17-month STEM OPT EADs the terms and conditions that were in expected time to both complete and should receive a waiver of application effect when that EAD was issued. review the proposed form. fees for a revised 24-month EAD. With regard to the commenter’s According to these commenters, J. Comments on the Initial Regulatory estimate of the approximate time students had not caused the program Impact Analysis required to upload the training plan into requirements to change, and they Comment. Some commenters were SEVIS, DHS clarifies that the rule does should not be punished for it. generally supportive of the proposed not require the Training Plan for STEM Response. As noted above, after the rule, but stated that DHS severely OPT Students to be uploaded into that effective date of this final rule, certain underestimated the time-burden and database at this time, but instead only students with 17-month STEM OPT costs to DSOs for complying with requires that DSOs properly store it. extensions may apply for an additional requirements concerning the submission Once SEVIS functionality is upgraded to 7-month extension to effectively obtain of training plans and periodic permit the Training Plan to be the balance of the new 24-month STEM evaluations. Commenters believed that uploaded, the form must be uploaded OPT extension. To qualify for the 7- DHS estimates related to these into SEVIS for each F–1 student month extension, such students must requirements—including 30 minutes for participating in a STEM OPT extension. have at least 150 days remaining before review of training plans and 15 minutes DHS anticipates, however, that the new the end of the student’s 17-month OPT for review of periodic evaluations— student portal will allow F–1 students period, and they must otherwise meet were unrealistic. Specifically, one to upload certain information, including all requirements of the final rule university representative explained that the Training Plan, directly into SEVIS. governing the 24-month STEM OPT DSOs would need to spend 50 to 60 This means that DSOs ultimately will extension. DHS considered commenters’ minutes reviewing and storing each not be required to spend any time suggestions, but ultimately determined training plan. The commenter explained uploading the form into SEVIS and that that automatically converting 17-month that DSOs would need 30 minutes to their burdens will otherwise be reduced extensions into 24-month extensions review training plans for completeness due to the student portal. would be inconsistent with many parts and follow up with students as Comment. Another commenter of the rule, including the requirements necessary, and an additional 20 to 30 suggested that DHS ‘‘is neglecting its related to Training Plans, employer minutes to upload the document into duty under federal guidance to discuss attestations, and reporting requirements. SEVIS. Other commenters stated that it crucial economic considerations, such For these reasons, students with 17- would take an employer 90 to 120 as how many OPT workers will be hired month extensions who seek to benefit minutes to complete the proposed instead of American workers; how many from the 24-month extension must Mentoring and Training Plan. STEM grads have given up finding work apply for the balance of the 24-month Response. In response to comments, in the STEM field; how the new rule extension consistent with this rule’s DHS revised the time estimated to will affect tech-worker wages and requirements. initially complete the Training Plan American STEM-grad employment.’’ Comment. DHS received a number of form. DHS added an hour to the Response. DHS disagrees that it comments seeking clarification on the estimate of DSO’s time to initially neglected to consider the economic

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00068 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13107

impact of the proposed rule, much of (Apr. 29, 2015). DHS will continue to the DSO, and the employer in order to which was described in the Initial seek feedback and proposals from complete Section 1 of the form. Regulatory Impact Analysis. DHS school officials on ways to increase Response. DHS recognizes the carefully considered the potential direct clarity and minimize burden. concerns of students and employers costs and benefits of the proposed rule, Comment. Some DSOs stated that with regard to complying with the and has carefully considered the their workloads would increase if they Training Plan requirements. As noted potential direct costs and benefits of the were obligated to follow up with above, DHS has incorporated significant final rule. students who miss their Training Plan flexibilities and clarifications into the Comment. Some commenters deadlines and reporting requirements. Training Plan requirement, including by suggested that DHS shift costs away Response. If a student does not submit reducing the frequency of evaluations. from students and universities. For his or her evaluation on time, the DSO DHS has also revised the burden instance, some commenters supported should report that fact to DHS. After estimates upwards, including to account the rule, but suggested fees to employers such reporting is completed, the DSO for time for necessary communication or students that would cover would have no further responsibility between the student, DSO, and government costs or costs for related to student non-compliance aside employer. universities, including the training of from any potential case-by-case DHS Comment. Some commenters stated DSOs on how to administer and review request for documentation regarding the that any government costs incurred to the proposed Mentoring and Training student. implement the rule should be used Plan. Comment. One commenter sought instead to help train and prepare U.S. One DSO recommended that DHS clarification on which persons would be students and graduates. establish a minimum personnel full- responsible for advising U.S. employers Response. The STEM OPT extension time equivalent (FTE) requirement for of their reporting obligations under 8 is a program implemented by SEVP, ‘‘SEVP regulatory advising and SEVIS CFR 214.2(f)(10)(ii)(C)(6). The which is entirely funded by fees paid by reporting requirement[s],’’ which would commenter, a school, stated that this students and schools. The program does be based on the number of F–1 students would be another burden that would fall not receive appropriated funds from enrolled and whether the school uses on schools as they would end up Congress, and the program is not SEVIS Real-time Interactive web educating employers about their implemented at taxpayers’ expense. processing or batch processing. The obligations. Thus, any elimination of the STEM OPT same DSO also suggested that this FTE Response. The employer, as an active extension would not result in increased figure be a SEVIS reporting requirement participant in the STEM OPT extension budget flexibility to address training of as part of a school’s recertification. program, is responsible for reporting U.S. citizen students and workers. Some commenters said that DHS’ any changes in student employment and K. Other Comments estimation of the time required for monitoring students’ progress and work reviewing the proposed Mentoring and via the Training Plan. DHS will make 1. Introduction Training Plan was too low in light of initial guidance available to all parties— DSOs’ current work duties. DHS received a number of comments DSOs, employers, and students— related to matters falling outside the Response. DHS views the Training regarding the responsibilities of each, as Plan as primarily the student’s topics discussed above. The comments soon as feasible. These guides will be responsibility to create and submit, but are addressed below. posted at http://www.ice.gov and http:// has made a number of changes in this studyinthestates.dhs.gov. 2. Public Comments and Responses rule that will reduce the Comment. The Initial Regulatory implementation costs for schools. For i. Procedural Aspects of the Rulemaking Impact Analysis estimated that it would example, DHS has decided to require Comment. Several commenters take approximately three hours for the only an annual evaluation, and the asserted that foreign nationals employer to complete the proposed Department has also clarified a DSO’s (including students and non-U.S. Mentoring and Training Plan, including review responsibilities in section IV.F. workers) should not be allowed to 2 hours for employers to initially of this preamble. In addition, SEVIS will comment on the proposed rule. complete the plan and an additional soon be updated to include a portal Response. Such an approach would hour for employers to help complete the allowing students to update their own be inconsistent with the statutory required evaluations.128 information. DHS believes the rule Some requirements established by Congress in offers benefits to U.S. institutions of commenters stated that DHS’ initial the APA’s notice-and-comment higher education that outweigh estimate of the time burden for provision, which do not include a administrative implementation costs. employers to complete the proposed citizenship or nationality requirement With respect to the commenters’ Mentoring and Training Plan and and places a priority on allowing all specific proposals, DHS notes that there conduct the required evaluation every interested persons to participate in a are currently no plans to add a six months was too low. One rulemaking proceeding. surcharge to employers to defray commenter cited a survey of employers Comment. One commenter stated that additional costs to schools or students. in which four out of five employers the use of a 30-day comment period DHS does not expect that this rule responded that ‘‘the government’s instead of a 60-day comment period would require new hiring by the school; estimate regarding time and cost to suggested an ‘‘executive power grab.’’ nevertheless, in 2015 DHS lifted the comply with the program requirements The commenter added that the 30-day prior cap of 10 DSOs per campus, is too low.’’ Another commenter comment period was intentionally allowing schools to better allocate observed that DHS’ initial time estimate designed to allow the rule to go into personnel to suit their F–1 student did not account for time necessary for effect on February 13, 2016, when the population needs. See 8 CFR communication between the student, 2008 STEM OPT extension was 214.3(l)(1)(iii); Final Rule: Adjustments originally scheduled to be vacated. The 128 See DHS, Initial Regulatory Impact Analysis, to Limitations on Designated School table 7 (Oct. 2015), available at http:// commenter stated that a February 13 Official Assignment and Study by F–2 www.regulations.gov/#!documentDetail;D=/ICEB- effective date would allow DHS to avoid and M–2 Nonimmigrants, 80 FR 23680 2015=/-0002=/-0206. a hiatus in processing applications.

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00069 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13108 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00070 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13109

for the student. DHS determined that in The below sections summarize our help ensure that the nation’s colleges order to meet that objective, the analyses based on a number of these and universities remain globally employer must comply with the statutes and executive orders. competitive in attracting international requirements of this final rule, which STEM students to study and lawfully A. Executive Orders 12866 and 13563: remain in the United States. include providing training conditions Regulatory Planning and Review consistent with the established Training 2. Summary of Affected Population Plan. Therefore, F–1 students may Executive Orders 12866 and 13563 change employers during a STEM OPT direct agencies to assess the costs and DHS has identified five categories of extension, but only in accordance with benefits of available regulatory students who will be eligible for STEM the STEM OPT regulations and in order alternatives and, if regulation is OPT extensions under the final rule: (1) to further their practical education in a necessary, to select regulatory Those currently eligible based on a position directly related to their major approaches that maximize net benefits recently obtained STEM degree; (2) area of study. Outside of such a (including potential economic, those eligible based upon a STEM situation, STEM OPT students who environmental, public health, and safety degree earned prior to their most recent leave their employers risk a loss of effects, as well as distributive impacts degree; (3) those eligible for a second immigration status and the opportunity and equity). Executive Order 13563 STEM OPT extension; (4) those eligible to further develop their skills through emphasizes the importance of based on potential changes to the practical training. quantifying both costs and benefits, of current STEM list; and (5) those eligible reducing costs, of harmonizing rules, to increase a currently authorized STEM iii. Miscellaneous Other Comments and of promoting flexibility. DHS has OPT extension period from 17 to 24 Comment. A university applauded the prepared an analysis of the potential months. clarification in a footnote that ‘‘OPT can costs and benefits associated with this DHS estimates the total number of be full-time even while a student is final rule. The analysis can be found in affected students across the five attending school that is in session,’’ but the docket for this rulemaking and is categories to be almost 50,000 in year requested that the statement be affirmed briefly summarized here. This rule has one and grow to approximately 92,000 via regulatory text. been designated a ‘‘significant in year 10. This estimation is based on Response. DHS declines to make this regulatory action’’ that is economically the growth rate of the overall proportion change because it would impact not significant, under section 3(f)(1) of of students with an eligible STEM only STEM OPT extensions but also the Executive Order 12866. Accordingly, degree who participate in the post- general OPT program, which would be OMB has reviewed this regulation. completion OPT program. DHS utilized a 15 percent growth rate that levelled off outside the scope of this rulemaking. 1. Summary Comment. A commenter asked to 11 percent to achieve a long run whether a student can choose to end his DHS is amending nonimmigrant stabilized participation rate in six years. or her post-completion OPT before the student visa regulations on OPT for Based on slightly lower and higher end of the eligibility period, so that the students with degrees in STEM from growth rates, DHS calculated low and student may preserve some OPT U.S. accredited institutions of higher high estimates; for year 1 the low and eligibility time for another degree the education. The final rule includes a 24- high figures are about the same as the student plans to pursue at the same month STEM OPT extension. The rule primary estimate, but by year 10 the low educational level. also seeks to strengthen the STEM OPT estimate is about 80,000 and the high Response. The time that a student program by requiring formal training estimate is approximately 112,000. may spend on OPT is not ‘‘bankable’’ plans by employers, adding wage and DHS conducted a statistically valid between two different degrees. This other protections for STEM OPT sample analysis to estimate the number concept remains applicable to the STEM students and U.S. workers, allowing of STEM OPT employers and schools OPT extension as well as to all pre- or extensions only to students with degrees that would be considered small entities. post-completion OPT. If a student does from accredited schools, and requiring To identify the entities that would be not use the full period of time eligible employers to enroll and remain in good considered ‘‘small,’’ DHS used the for one degree, the extra time cannot be standing with E-Verify. The rule also Small Business Administration’s (SBA) used for OPT based on a different provides Cap-Gap relief for any F–1 guidelines on small business size degree. student with a timely filed H–1B standards applied by NAICS code. This Comment. DHS received several petition and request for change of status. analysis indicated that 48 percent of comments regarding potential The rule provides a formal schools are small entities. Based on environmental costs resulting from an mechanism for updating the STEM 1,109 approved and accredited schools increased population, both in the Designated Degree Program list, and participating in STEM OPT extensions, United States generally, and in Silicon permits a student participating in post- about 532 could reasonably be expected Valley, California specifically, where completion OPT to use a prior eligible to be small entities impacted by this many STEM jobs are located. Some also STEM degree from a U.S. institution of rule. A sample of 26,260 entities that noted that California has been struggling higher education as a basis to apply for employed STEM OPT students under with an ongoing drought. an extension, provided the most recent the 2008 IFR revealed that about 69 Response. Upon review, DHS remains degree was also received from a percent were small. Hence, this rule convinced that our review pursuant to currently accredited institution. The could affect about 18,000 employers that the National Environmental Policy Act rule implements compliance and are small entities. is in compliance with the law and with reporting requirements that focus on 3. Estimated Costs of Final Rule our Directive and Instruction. formal training programs to augment academic learning through practical DHS estimates that the direct costs V. Statutory and Regulatory experience, in order to equip students imposed by the implementation of this Requirements with a more comprehensive rule will be approximately $886.1 DHS developed this final rule after understanding of their selected area of million over a 10-year analysis time considering numerous statutes and study and broader functionality within period. At a 7 percent discount rate, the executive orders related to rulemaking. their chosen field. These changes also rule will cost $588.5 million over the

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00071 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13110 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00072 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13111

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

TABLE 3—TOTAL COSTS FOR REGULATORY ALTERNATIVES CONSIDERED [$ millions]

Alternative 2 Improving and Alternative 1 no change in Alternative 3 extending Year no action STEM OPT 6 month STEM OPT length evaluations (final 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 formal process for updating the list of small- to medium-sized businesses that The Regulatory Flexibility Act of STEM degree programs that are eligible use this program. Commenters stated 1980, 5 U.S.C. 601–612, as amended by for the STEM OPT extension, and that managers of such businesses have the Small Business Regulatory incorporate new measures to better many daily responsibilities—they are Enforcement Fairness Act of 1996, ensure that STEM OPT extensions do responsible for payroll, managing the Public Law 104–121 (March 29, 1996), not adversely affect U.S. workers. DHS Human Resources department, and requires Federal agencies to consider objectives and legal authority for this personally working with their customers the potential impact of regulations on final rule are further discussed or clients, among other responsibilities. small entities during rulemaking. The elsewhere in this preamble. Commenters stated that DHS underestimated the increased term ‘‘small entities’’ comprises small 2. A Statement of the Significant Issues business, not-for-profit organizations administrative burdens that will be Raised by the Public Comments in borne by small businesses, and noted that are independently owned and Response to the Initial Regulatory operated and are not dominant in their that this time cannot be spent on the Flexibility Analysis, a Statement of the core competencies of the firm. Many of fields, and governmental jurisdictions Assessment of the Agency of Such with populations of less than 50,000. these same concerns are shared by larger Issues, and a Statement of Any Changes companies as well. Commenters 1. A Statement of the Need for, and Made in the Rule as a Result of Such identifying as large participants in the Objectives of, the Rule Comments OPT program stated concerns that the The final rule improves the STEM Comment. Many universities and individualized training plan must be OPT extension by increasing oversight employers specifically stated that the tracked by a supervisory employee at and strengthening requirements for rule would improve overall U.S. the firm for each worker. participation. The changes to the STEM economic competitiveness. However, Commenters stated that many firms OPT extension regulations are intended commenters stated that the burden of already have workable mentoring and to enhance the educational benefit of the proposed Mentoring and Training training programs in place at their firms, the STEM OPT extension, create a Plan would be felt more acutely by and some expressed concerns that the

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00073 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13112 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

TABLE 4—SCHOOLS—COST OF COMPLIANCE PER STEM OPT OPPORTUNITY

Cost in year 1 Cost in year 2 Final provision Calculation of school cost per student per student per student

Initially Reviewing and Filing Training Plan Form 1 ...... (1.33 hours × $39.33) ...... $52.31 $0.00 12-Month Evaluation 2 ...... (1 hour × 1 eval × $39.33) ...... 39.33 39.33 6-Month Validation Check-Ins 2 ...... (0.17 hours × 2 validation check-ins × $39.33) ...... 13.37 13.37

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00074 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13113

TABLE 4—SCHOOLS—COST OF COMPLIANCE PER STEM OPT OPPORTUNITY—Continued

Cost in year 1 Cost in year 2 Final provision Calculation of school cost per student per student per student

Additional Implementation 2 ...... 0.10 × (Training Plan Initial + eval + validation check- 10.83 5.27 ins costs). Periodic Reports to DSO ...... 0.17 hours × 2 reports × $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 estimate school revenue.129 While sufficient data would be less than 1 schools based on the school cost of tuition revenue may underestimate percent, with the average annual impact compliance as a percentage of annual actual school revenue, this is the best being 0.005 percent. All sampled small- revenue. Second-year costs account for information available to DHS, and entity schools with sufficient data had new additional STEM OPT extension certainly the largest source of income second-year annual impacts of less than students. For not-for-profit schools, DHS for most schools. DHS’s analysis shows 1 percent, with the average annual multiplied full-time first-year student that the first-year annual impact for the impact being 0.009 percent. tuition by total number of students to sampled small-entity schools with

TABLE 5—SCHOOLS—ANNUAL IMPACT IN YEAR 1

Number of Number of for-profit non-profit Percent of Revenue impact range small entities small entities small entity with data with data schools

0% < Impact ≤ 1% ...... 4 137 100%

Total ...... 141 100

TABLE 6—SCHOOLS—ANNUAL IMPACT IN YEAR 2

Number of Number of for-profit non-profit Percent of Revenue impact range small entities small entities small entity with data with data schools

0% < Impact ≤ 1% ...... 4 137 100%

Total ...... 141 100

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

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00075 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13114 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

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 × $78.96) + (1 hour × $43.93) ...... $280.81 $0.00 12-Month Evaluations 2 ...... (0.75 hours × 1 eval × $78.96) ...... 59.22 59.22 Additional Implementation ...... 0.1 × (Training Plan Initial + evals costs) ...... 34.00 5.92

Employer STEM OPT Costs per Student = ...... Total ...... 374.03 65.14

Cost for E-Verify per New Hire Case ...... (0.16 hours × $43.93) ...... 7.03 7.03 E-Verify Enrollment & Setup ...... (2.26 hours × $80.12) + $100 ...... 281.07 0.00 E-Verify Annual Training & Maintenance ...... (1 hour × $43.93) + $398 ...... 441.93 441.93 Compliance Site Visit ...... ([5 hours × $78.96] + [5 hours × $43.93]) ...... 0.00 614.45

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. 2Estimated based on 12-month-period.

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

TABLE 8—EMPLOYERS—ANNUAL IMPACT IN YEAR 1

Number of Number of for-profit non-profit Percent of Revenue impact range small entities small entities small entity with data with 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 Number of for-profit non-profit Percent of Revenue impact range small entities small entities small entity with data with data employers

0% < Impact ≤ 1% ...... 239 7 99% 1% < Impact ≤ 3% ...... 3 0 1

Total ...... 249 100.0

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

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00076 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13115

6. A description of the steps the agency three alternative options that could have State, local, or tribal government in the has taken to minimize the significant reduced the burden of the rule on small aggregate, or by the private sector, of economic impact on small entities entities. The alternatives considered $100,000,000 (adjusted for inflation) or consistent with the stated objectives of were (1) no regulatory action, (2) no more in any year. Although this rule applicable statutes, including a change in the duration of the STEM would not result in such an statement of the factual, policy, and OPT extension, and (3) requiring a six expenditure, we do discuss the effects of legal reasons for selecting the alternative month evaluation. DHS rejected these this rule elsewhere in this preamble. alternatives. First, without regulatory adopted in the final rule, and why each E. Congressional Review Act one of the other significant alternatives action, OPT students would no longer to the rule considered by the agency be allowed to work or reside in the DHS has sent this final rule to the which affect the impact on small United States past their 12-month post- Congress and to Comptroller General entities was rejected completion OPT period. This would under the Congressional Review Act, 5 deter future international students who U.S.C. 801 et seq. This rule is a ‘‘major DHS recognizes that the final rule will would pursue STEM degrees from rule’’ within the meaning of the increase requirements on schools and applying to U.S. educational Congressional Review Act. employers of STEM OPT students. DHS institutions, and reduce the has tried to minimize, to the extent F. Collection of Information attractiveness of U.S. educational possible, the small entity economic institutions compared to educational Federal agencies are required to impacts of the final rule by structuring systems in other countries that have submit to OMB, for review and the program such that students are more flexible student work programs. approval, any reporting or largely responsible for meeting its Second, without increasing the duration recordkeeping requirements inherent in requirements. This not only minimizes of the STEM OPT extension, students’ a rule under the Paperwork Reduction the burden of the final program on practical training opportunities would Act of 1995, as amended, 44 U.S.C. schools and employers but also helps to not be long enough to complement the 3501–3520. Under the Paperwork ensure that students, who are the most student’s academic experience and Reduction Act, an agency may not direct beneficiaries of the practical allow for a meaningful educational conduct or sponsor, and a person is not training opportunities, bear an equitable experience, particularly given the required to respond to, a collection of amount of responsibility. complex nature of STEM projects. After information unless it displays a DHS has tried to minimize additional weighing the advantages and currently valid OMB control number. DSO responsibilities while balancing disadvantages of each alternative, DHS DHS has submitted the following the need for oversight. For example, elected to improve and extend the information collection request to the Training Plan evaluations will be STEM OPT program in order to increase OMB for review and approval in conducted and submitted annually, students’ ability to gain valuable accordance with the review procedures rather than semi-annually, as DHS had knowledge and skills through on-the-job of the Paperwork Reduction Act. The initially proposed. training in their field that may be information collection requirements are DHS has tried to provide flexibility unavailable in their home countries, outlined in this rule. The rule maintains for small entities in methods they can increase global attractiveness of U.S. the 2008 IFR revisions to previously use to meet the commensurate duties, colleges and universities, increase approved information collections. The hours, and compensation requirements program oversight and strengthen 2008 IFR impacted information for STEM OPT students. The final rule requirements for program participation, collections for Form I–765, Application allows employers to perform an analysis and institute new protections for U.S. for Employment Authorization (OMB that uses their own wage and workers. Control No. 1615–0040); SEVIS and compensation data to determine how to Form I–20, Certificate of Eligibility for compensate their STEM OPT employee C. Small Business Regulatory Nonimmigrant Student Status (both in a comparable manner to their Enforcement Fairness Act of 1996 OMB Control No. 1653–0038); and E- similarly situated U.S. workers. This Pursuant to Sec. 213(a) of the Small Verify (OMB Control No. 1615–0092). provides small entities flexibility rather Business Regulatory Enforcement These four approved information than applying a prescriptive national, Fairness Act of 1996, Public Law 104– collections corresponding to the 2008 state, or metropolitan data requirement. 121, DHS wants to assist small entities IFR include the number of respondents, And because small entities may not in understanding this rule. If the rule responses and burden hours resulting have similarly situated U.S. workers, the would affect your small business, from the 2008 IFR requirements, which rule provides alternative options, organization, or governmental remain in this final rule. Therefore DHS discussed in the preamble, for jurisdiction and you have questions is not revising the burden estimates for compliance with the requirement to concerning its provisions, please these four information collections. provide commensurate compensation. consult DHS using the contact Additional responses tied to new Finally, the rule allows employers to information provided in the FOR changes to STEM OPT eligibility will meet some of the Training Plan FURTHER INFORMATION CONTACT section minimally increase the number of requirements using existing training above. DHS will not retaliate against responses and burden for Form I–765 programs. small entities that question or complain and E-Verify information collections, as DHS will engage in further about this rule or about any DHS policy the two collections cover a significantly stakeholder outreach activities and or action related to this rule. broader population of respondents and provide clarifying information as responses than those impacted by the appropriate. DHS envisions that this D. Unfunded Mandates Reform Act rule and already account for growth in outreach will reduce the burden that The Unfunded Mandates Reform Act the number of responses in their may result from small entities’ of 1995 (2 U.S.C. 1531–1538) requires respective published information uncertainty in how to comply with the federal agencies to assess the effects of collection notices burden estimates. requirements. their discretionary regulatory actions. In As part of this rule, DHS is creating As explained in greater detail in particular, the Act addresses actions a new information collection instrument Chapter 8 of the RIA, DHS examined that may result in the expenditure by a for the Training Plan for STEM OPT

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00077 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13116 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

Students, which is now available at those goals will be achieved through the have determined that it does not have https://studyinthestates.dhs.gov/. This work-based learning opportunity with implications for federalism. information collection is necessary to the employer, including details of the H. Civil Justice Reform enable reporting and attesting to knowledge, skills, or techniques to be specified information relating to STEM imparted to the student; identifies the This rule meets applicable standards OPT extensions, to be executed by performance evaluation process; and in sections 3(a) and 3(b)(2) of Executive STEM OPT students and their describes the methods of oversight and Order 12988, Civil Justice Reform, to employers. Such reporting will include supervision. The Training Plan also minimize litigation, eliminate goals and objectives, progress, hours, includes a number of employer ambiguity, and reduce burden. and compensation. Attestations will attestations intended to ensure the I. Energy Effects ensure proper training opportunities for educational benefit of the practical students and safeguard interests of U.S. training experience, protect STEM OPT We have analyzed this rule under workers in related fields. students, and protect against Executive Order 13211, Actions Additionally, DHS is making minor appreciable adverse consequences on Concerning Regulations That non-substantive changes to the U.S. workers. The rule also requires Significantly Affect Energy Supply, instructions to Form I–765 to reflect schools to collect and retain this Distribution, or Use. We have changes to the F–1 regulations that information for a period of three years determined that it is not a ‘‘significant lengthen the STEM OPT extension and following the completion of each STEM energy action’’ under that order because allow applicants to file Form I–765 with practical training opportunity. it is not likely to have a significant USCIS within 60 days (rather than 30 5. An estimate of the total annual adverse effect on the supply, days) from the date the DSO endorses average number of respondents, annual distribution, or use of energy. the STEM OPT extension. Accordingly, average number of responses, and the J. Environment USCIS submitted an OMB 83–C, total amount of time estimated for The U.S. Department of Homeland Correction Worksheet, to OMB, which respondents in an average year to Security Management Directive (MD) reviewed and approved the minor edits collect, provide information, and keep 023–01 Rev. 01 establishes procedures to the Form I–765 instructions. the required records is: that DHS and its components use to Overview of New Information • 42,092 STEM OPT student Collection- Training Plan for STEM OPT comply with the National respondents; 1,109 accredited schools Environmental Policy Act of 1969 Students endorsing STEM OPT students; and (1) Type of Information Collection: (NEPA), 42 U.S.C. 4321–4375, and the 16,891 employers of STEM OPT Council on Environmental Quality New Collection. students. (2) Title of the Form/Collection: (CEQ) regulations for implementing • 42,092 average responses annually Training Plan for STEM OPT Students. NEPA, 40 CFR parts 1500–1508. CEQ (3) Agency form number, if any, and at 7.5 hours per initial Training Plan regulations allow federal agencies to response. the applicable component of DHS • establish categories of actions, which do sponsoring the collection: Immigration 70,153 average responses annually not individually or cumulatively have a and Customs Enforcement Form I–983; at 3.66 hours per 12-month evaluation significant effect on the human (4) Affected public who will be asked response by STEM OPT students, DSOs, environment and, therefore, do not or required to respond, as well as a brief and employers. require an Environmental Assessment or abstract: 6. An estimate of the total public Environmental Impact Statement. 40 • Primary: Students with F–1 burden (in hours) associated with the CFR 1508.4. The MD 023–01 Rev. 01 nonimmigrant status, state governments, collection: 566,698 hours. lists the Categorical Exclusions that local governments, educational The recordkeeping requirements set DHS has found to have no such effect. institutions, businesses, and other for- forth by this rule are new requirements MD 023–01 Rev. 01 Appendix A Table profit and not-for-profit organizations. that require a new OMB Control 1. • Other: None. Number. For an action to be categorically • Abstract: DHS is publishing a final During the NPRM, DHS sought excluded, MD 023–01 Rev. 01 requires rule that makes certain changes to the comment on these proposed the action to satisfy each of the STEM OPT extension first introduced requirements. DHS received a number of following three conditions: by the 2008 IFR. The rule lengthens the comments on the burden potentially (1) The entire action clearly fits duration of the STEM OPT extension to imposed by the proposed rule. The within one or more of the Categorical 24 months; requires a Training Plan comments, and DHS’s responses to Exclusions. executed by STEM OPT students and those comments, can be found in the (2) The action is not a piece of a larger their employers; requires that the plan discussion of public comments action. include assurances to safeguard regarding Form I–983 in section IV of (3) No extraordinary circumstances students and the interests of U.S. this preamble. The final form and exist that create the potential for a workers in related fields; and requires instructions are available in the docket significant environmental effect. MD that the plan include objective-tracking for this rulemaking. 023–01 Rev. 01 section V.B(1)–(3). and reporting requirements. The rule Where it may be unclear whether the G. Federalism requires students and employers action meets these conditions, MD 023– (through an appropriate signatory A rule has implications for federalism 01 Rev. 01 requires the administrative official) to report on the Training Plan under Executive Order 13132, record to reflect consideration of these certain specified information relating to Federalism, if it has substantial direct conditions. MD 023–01 Rev. 01 section STEM OPT extensions. For instance, the effects on the States, on the relationship V.B. Training Plan explains how the between the national government and DHS has analyzed this rule under MD practical training is directly related to the States, or on the distribution of 023–01 Rev. 01. DHS has determined the student’s qualifying STEM degree; power and responsibilities among the that this action is one of a category of explains the specific goals of the STEM various levels of government. We have actions that do not individually or practical training opportunity and how analyzed this rule under that Order and cumulatively have a significant effect on

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00078 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13117

the human environment. This rule List of Subjects shall automatically terminate upon the clearly fits within the Categorical rejection, denial, revocation, or 8 CFR Part 214 Exclusion found in MD 023–01 Rev. 01, withdrawal of the H–1B petition filed Appendix A, Table 1, number A3(a): Administrative practice and on such F–1 student’s behalf or upon ‘‘Promulgation of rules . . . of a strictly procedure, Aliens, Employment, the denial or withdrawal of the request administrative or procedural nature;’’ Foreign officials, Health professions, for change of nonimmigrant status, even and A3(d): ‘‘Promulgation of rules . . . Reporting and recordkeeping if the H–1B petition filed on the F–1 that interpret or amend an existing requirements, Students. student’s behalf is approved for regulation without changing its 8 CFR Part 274a consular processing. environmental effect.’’ This rule is not (C) In order to obtain the automatic part of a larger action. This rule presents Administrative practice and extension of stay and employment no extraordinary circumstances creating procedure, Aliens, Employment, authorization under paragraph the potential for significant Penalties, Reporting and recordkeeping (f)(5)(vi)(A) of this section, the F–1 environmental effects. Therefore, this requirements. student, consistent with 8 CFR part 248, rule is categorically excluded from The Amendments must not have violated the terms or further NEPA review. conditions of his or her nonimmigrant For the reasons set forth in the status. K. Indian Tribal Governments preamble, the Department of Homeland (D) An automatic extension of an F– This rule does not have tribal Security amends parts 214 and 274a of 1 student’s duration of status under implications under Executive Order Chapter 1 of Title 8 of the Code of paragraph (f)(5)(vi)(A) of this section 13175, Consultation and Coordination Federal Regulations as follows: also applies to the duration of status of any F–2 dependent aliens. with Indian Tribal Governments, PART 214—NONIMMIGRANT CLASSES because it does not have a substantial * * * * * direct effect on one or more Indian ■ 1. Revise the authority citation for part (10) * * * tribes, on the relationship between the 214 to read as follows: (ii) * * * Federal Government and Indian tribes, (A) * * * Authority: 6 U.S.C. 111 and 202; 8 U.S.C. (3) After completion of the course of or on the distribution of power and 1101, 1102, 1103, 1182, 1184, 1186a, 1187, responsibilities between the Federal 1221, 1281, 1282, 1301–1305, 1324a, 1372 study, or, for a student in a bachelor’s, Government and Indian tribes. and 1762; Sec. 643, Pub. L. 104–208, 110 master’s, or doctoral degree program, after completion of all course L. Taking of Private Property Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477–1480; Pub. L. 107–173, 116 Stat. 543; requirements for the degree (excluding This rule would not cause a taking of section 141 of the Compacts of Free thesis or equivalent). Continued private property or otherwise have Association with the Federated States of enrollment, for the school’s takings implications under Executive Micronesia and the Republic of the Marshall administrative purposes, after all Order 12630, Governmental Actions and Islands, and with the Government of Palau, requirements for the degree have been 48 U.S.C. 1901 note, and 1931 note, met does not preclude eligibility for Interference with Constitutionally respectively; 48 U.S.C. 1806; 8 CFR part 2. optional practical training. A student Protected Property Rights. ■ 2. Amend § 214.2 by revising must complete all practical training M. Protection of Children paragraphs (f)(5)(vi), (f)(10)(ii)(A)(3), within a 14-month period following the (f)(10)(ii)(C), (D), and (E), and (f)(11) and DHS has analyzed this rule under completion of study, except that a 24- (12) to read as follows: Executive Order 13045, Protection of month extension pursuant to paragraph Children from Environmental Health § 214.2 Special requirements for (f)(10)(ii)(C) of this section does not Risks and Safety Risks. This rule would admission, extension, and maintenance of need to be completed within such 14- not create an environmental risk to status. month period. health or risk to safety that might * * * * * * * * * * disproportionately affect children. (f) * * * (C) 24-month extension of post- completion OPT for a science, N. Technical Standards (5) * * * (vi) Extension of duration of status technology, engineering, or mathematics The National Technology Transfer and grant of employment authorization. (STEM) degree. Consistent with and Advancement Act of 1995 (15 (A) The duration of status, and any paragraph (f)(11)(i)(C) of this section, a U.S.C. 272 note) directs agencies to use employment authorization granted qualified student may apply for an voluntary consensus standards in their under 8 CFR 274a.12(c)(3)(i)(B) or (C), of extension of OPT while in a valid regulatory activities unless the agency an F–1 student who is the beneficiary of period of post-completion OPT provides Congress, through the OMB, an H–1B petition subject to section authorized under 8 CFR with an explanation of why using these 214(g)(1)(A) of the Act (8 U.S.C. 274a.12(c)(3)(i)(B). An extension will be standards would be inconsistent with 1184(g)(1)(A)) and request for change of for 24 months for the first qualifying applicable law or otherwise status shall be automatically extended degree for which the student has impracticable. Voluntary consensus until October 1 of the fiscal year for completed all course requirements standards are technical standards (e.g., which such H–1B status is being (excluding thesis or equivalent), specifications of materials, performance, requested where such petition: including any qualifying degree as part design, or operation; test methods; (1) Has been timely filed; and of a dual degree program, subject to the sampling procedures; and related (2) Requests an H–1B employment requirement in paragraph (f)(10)(ii)(C)(3) management systems practices) that are start date of October 1 of the following of this section that previously obtained developed or adopted by voluntary fiscal year. degrees must have been conferred. If a consensus standards bodies. This rule (B) The automatic extension of an F– student completes all such course does not use technical standards. 1 student’s duration of status and requirements for another qualifying Therefore, we did not consider the use employment authorization under degree at a higher degree level than the of voluntary consensus standards. paragraph (f)(5)(vi)(A) of this section first, the student may apply for a second

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00079 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13118 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00080 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13119

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00081 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13120 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

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

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00082 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations 13121

information required by paragraph will be regarded as being covered by 8 the 150-day unemployment limit (f)(12)(ii)(A) of this section has not CFR 214.2(f)(11)(i)(C) and 8 CFR described in 8 CFR 214.2(f)(10)(ii)(E), changed, every six months. The 274a.12(b)(6)(iv). which applies to students only upon requirement for validation reporting (b) STEM OPT Applications for approval of the additional 7-month OPT starts on the date the 24-month OPT Employment Authorization that are extension. Subsequent to any denial of extension begins and ends when the filed and approved before May 10, 2016. the application for the additional 7- student’s F–1 status expires or the 24- A student whose Form I–765 is filed month extension, the student, the month OPT extension concludes, and approved prior to May 10, 2016 will student’s employer, and the student’s whichever is first. The validation report be issued an Employment Authorization DSO must abide by all the terms and is due to the student’s DSO within 10 Document, Form I–766, that is valid for conditions that were in effect when the business days of each reporting date. 17 months even if the student requested 17-month OPT extension was issued * * * * * a 24-month OPT extension. throughout the remaining validity ■ 3. In § 214.3, revise paragraph (c) Students with 17-Month STEM period of the 17-month OPT extension. (g)(2)(ii)(F) to read as follows: OPT employment authorization. (1) Subject to paragraph (c)(3) of this PART 274a—CONTROL OF § 214.3 Approval of schools for enrollment section, any Employment Authorization EMPLOYMENT OF ALIENS of F and M nonimmigrants. Document, Form I–766, indicating a 17- * * * * * month OPT extension under the rule ■ 5. The authority citation for part 274a (g) * * * issued at 73 FR 18944 that has been continues to read as follows: (2) * * * issued and is valid prior to May 10, Authority: 8 U.S.C. 1101, 1103, 1324a; 48 (ii) * * * 2016 remains valid until such Form I– U.S.C. 1806; 8 CFR part 2. (F) For F–1 students authorized by 766 expires or is terminated or revoked USCIS to engage in a 24-month under 8 CFR 274a.14, and the student, Subpart B—Employment Authorization extension of OPT under 8 CFR the student’s employer, and the 214.2(f)(10)(ii)(C): student’s DSO must continue to abide ■ 6. In § 274a.12, revise paragraph (1) Any change that the student by all the terms and conditions that (b)(6)(iv) and (v) and (c)(3)(i) to read as reports to the school concerning legal were in effect when the Form I–766 was follows: name, residential or mailing address, issued. employer name, or employer address; (2) Subject to the requirements in § 274a.12 Classes of aliens authorized to and paragraphs (c)(2)(i) through (iii) of this accept employment. (2) The end date of the student’s section, F–1 students with a 17-month * * * * * employment reported by a former OPT extension under the rule issued at (b) * * * employer in accordance with 8 CFR 73 FR 18944 are eligible to apply for an (6) * * * 214.2(f)(10)(ii)(C)(6). additional 7-month period of OPT. The (iv) An Employment Authorization * * * * * F–1 student applying for the additional Document, Form I–766 or successor ■ 4. Section § 214.16 is added, effective 7-month period of OPT must: form, under paragraph (c)(3)(i)(C) of this May 10, 2016 through May 10, 2019, to (i) Properly file a Form I–765, with section based on a STEM Optional read as follows: USCIS on or after May 10, 2016 and on Practical Training extension, and whose or before August 8, 2016, and within 60 timely filed Form I–765 or successor § 214.16 Transition Procedures for OPT days of the date the DSO enters the form is pending and employment Applications for Employment Authorization recommendation for the 24-month OPT authorization and accompanying Form (a) STEM OPT Applications for extension into the student’s SEVIS I–766 or successor form issued under Employment Authorization that are record, with applicable fees and paragraph (c)(3)(i)(B) of this section filed prior to, and remain pending on supporting documentation, as described have expired. Employment is authorized May 10, 2016. (1) On or after May 10, in the form instructions; beginning on the expiration date of the 2016, USCIS will issue Requests for (ii) Have at least 150 calendar days Form I–766 or successor form issued Evidence (RFEs) to students whose remaining prior to the end of his or her under paragraph (c)(3)(i)(B) of this applications for a 17-month OPT 17-month OPT extension at the time the section and ending on the date of extension under the rule issued at 73 FR Form I–765, is properly filed; and USCIS’ written decision on the current 18944 are still pending. The RFEs will (iii) Meet all the requirements for the Form I–765 or successor form, but not request documentation that will 24-month OPT extension as described in to exceed 180 days. For this same establish that the student is eligible for 8 CFR 214.2(f)(10)(ii)(C), except the period, such Form I–766 or successor a 24-month OPT extension under 8 CFR requirement that the student must be in form is automatically extended and is 214.2(f)(10)(ii)(C), including a Form I– a valid period of post-completion OPT considered unexpired when combined 20 endorsed on or after May 10, 2016, authorized under 8 CFR with a Certificate of Eligibility for indicating that the Designated School 274a.12(c)(3)(i)(B). Nonimmigrant (F–1/M–1) Students, (3) Students on a 17-month OPT Official (DSO) recommends the student Form I–20 or successor form, endorsed extension who apply for and are granted for a 24-month OPT extension and that by the Designated School Official an additional 7-month period of OPT the requirements for such an extension recommending such an extension; or have been met. Submission of the Form shall be considered to be in a period of (v) Pursuant to 8 CFR 214.2(h) is I–20 in response to an RFE issued under 24-month OPT extension, as authorized seeking H–1B nonimmigrant status and 8 CFR 214.16(a) will be regarded as under 8 CFR 214.2(f)(10)(ii)(C). Upon whose duration of status and fulfilling the requirement in 8 CFR proper filing of the application for the employment authorization have been 214.2(f)(11)(i) that a student must additional 7-month OPT extension, the extended pursuant to 8 CFR initiate the OPT application process by student, the student’s employer as 214.2(f)(5)(vi). requesting a recommendation for OPT identified in the student’s completed by his or her DSO. Form I–983 and the student’s DSO are * * * * * (2) Forms I–765 that are filed prior to, subject to all requirements of the 24- (c) * * * and remain pending on, May 10, 2016, month OPT extension period, except for (3) * * *

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00083 16030901. Fmt 4701 Sfmt 4700(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES 13122 Federal Register / Vol. 81, No. 48 / Friday, March 11, 2016 / Rules and Regulations

(i)(A) Is seeking pre-completion Optional Practical Training (OPT) (C) Is seeking a 24-month OPT practical training pursuant to 8 CFR pursuant to 8 CFR 214.2(f)(10)(ii)(A)(3); extension pursuant to 8 CFR 214.2(f)(10)(ii)(A)(1) and (2); or 214.2(f)(10)(ii)(C); (B) Is seeking authorization to engage * * * * * in up to 12 months of post-completion Jeh Charles Johnson, Secretary of Homeland Security. [FR Doc. 2016–04828 Filed 3–9–16; 8:45 am] BILLING CODE 9111–28–P

VerDate Sep<11>2014 19:04 Mar 10, 2016 Jkt 238001AILA PO 00000Doc. Frm No. 00084 16030901. Fmt 4701 Sfmt 9990(Posted E:\FR\FM\11MRR2.SGM 3/11/16) 11MRR2 asabaliauskas on DSK3SPTVN1PROD with RULES