[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)]
[Proposed Rules]
[Pages 63376-63404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26395]



[[Page 63375]]

Vol. 80

Monday,

No. 201

October 19, 2015

Part IV





Department of Homeland Security





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8 CFR Parts 214 and 274a





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

  Federal Register / Vol. 80 , No. 201 / Monday, October 19, 2015 / 
Proposed Rules  

[[Page 63376]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

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


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

AGENCY: Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) proposes to amend 
its F-1 nonimmigrant student visa regulations on optional practical 
training (OPT) for certain students with degrees in science, 
technology, engineering, or mathematics (STEM) from U.S. institutions 
of higher education. Specifically, the proposal would allow such F-1 
STEM students who have elected to pursue 12 months of OPT in the United 
States to extend the OPT period by 24 months (STEM OPT extension). This 
24-month extension would effectively replace the 17-month STEM OPT 
extension currently available to certain STEM students. The rule also 
improves and increases oversight over STEM OPT extensions by, among 
other things, requiring the implementation of formal mentoring and 
training plans by employers, adding wage and other protections for STEM 
OPT students and U.S. workers, and allowing extensions only to students 
with degrees from accredited schools.
    As with the current 17-month STEM OPT extension, the proposed rule 
would authorize STEM OPT extensions only for students employed by 
employers enrolled in U.S. Citizenship and Immigration Services' 
(USCIS') E-Verify employment eligibility verification program. The 
proposal also includes the ``Cap-Gap'' relief first introduced in 2008 
for any F-1 student with a timely filed H-1B petition and request for 
change of status. This Cap-Gap relief allows such students to 
automatically extend the duration of F-1 status and any current 
employment authorization until October 1 of the fiscal year for which 
such H-1B visa is being requested.
    In addition to improving the integrity and value of the STEM OPT 
program, this proposed rule also responds to a court decision that 
vacated a 2008 DHS regulation on procedural grounds. The proposed rule 
includes changes to the policies announced in the 2008 rule to further 
enhance the academic benefit provided by STEM OPT extensions and 
increase oversight, which will better ensure that students gain 
valuable practical STEM experience that supplements knowledge gained 
through their academic studies, while preventing adverse effects to 
U.S. workers. By earning a functional understanding of how to apply 
their academic knowledge in a work setting, students will be better 
positioned to begin careers in their fields of study. These on-the-job 
educational experiences would be obtained only with those employers 
that commit to developing students' knowledge and skills through 
practical application. The proposed changes would also help ensure that 
the nation's colleges and universities remain globally competitive in 
attracting international STEM students to study and lawfully remain in 
the United States.

DATES: Comments must be received by DHS on or before November 18, 2015. 
Comments on the information collection provisions proposed in this rule 
must be received by DHS and the Office of Management and Budget (OMB) 
on or before November 18, 2015.

ADDRESSES: You may submit comments, identified by the DHS docket number 
to this rulemaking, Docket No. ICEB-2015-0002, to the Federal Docket 
Management System (FDMS), a government-wide, electronic docket 
management system, by one of the following methods:
     Electronically: Submit comments to the Federal eRulemaking 
Portal at http://www.regulations.gov. Follow the instructions for 
submitting comments.
     Mail: Address your written comments to the individual in 
the FOR FURTHER INFORMATION CONTACT section below. DHS docket staff, 
which maintains and processes U.S. Immigration and Customs 
Enforcement's (ICE's) official regulatory dockets, will scan the 
submission and post it to FDMS.
    Collection of information. You must submit comments on the 
collection of information discussed in this notice of proposed 
rulemaking both to DHS's docket and to OMB's Office of Information and 
Regulatory Affairs (OIRA). OIRA submissions can be made using one of 
the listed methods.
     Electronically (preferred): [email protected] 
(include the docket number and ``Attention: Desk Officer for U.S. 
Immigration and Customs Enforcement, DHS'' in the subject line of the 
email).
     Fax: 202-395-6566.
     Mail: Office of Information and Regulatory Affairs, Office 
of Management and Budget, 725 17th Street NW., Washington, DC 20503, 
ATTN: Desk Officer, U.S. Immigration and Customs Enforcement, DHS.
    See the Public Participation portion of the SUPPLEMENTARY 
INFORMATION section below for additional instructions on submitting 
comments.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Public Participation
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Public Meeting
II. Abbreviations
III. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of the Major Provisions of the Regulatory Action
    C. Costs and Benefits
IV. Background and Purpose
    A. Authority, Regulatory History, and Recent Litigation
    B. ICE and SEVIS
    C. Basis and Purpose of Regulatory Action
V. Discussion of Elements of the STEM OPT Extension
    A. Including a STEM OPT Extension Within the OPT Program
    B. STEM Extension Period for OPT
    C. STEM Definition and CIP Categories for STEM OPT Extension
    D. Mentoring and Training Plan
    E. USCIS E-Verify Employment Verification Program
    F. Previously Obtained STEM Degrees
    G. Safeguarding U.S. Workers through Measures Consistent with 
Labor Market Protections
    H. Oversight through School Accreditation Requirements and 
Employer Site Visits
    I. Additional Compliance Requirements
    J. Cap-Gap Extension for F-1 Students with Timely Filed H-1B 
Petitions and Change of Status Requests
VI. Statutory and Regulatory Requirements
    A. Executive Orders 12866 and 13563: Regulatory Planning and 
Review
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act of 1996
    D. Unfunded Mandates Reform Act
    F. Collection of Information
    G. Federalism
    H. Civil Justice Reform
    I. Energy Effects
    J. Environment
    K. Indian Tribal Governments
    L. Taking of Private Property
    M. Protection of Children
    N. Technical Standards

I. Public Participation

    We encourage you to participate in this rulemaking by submitting

[[Page 63377]]

comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you provide unless you request that your 
personally identifiable information be redacted. We also invite 
comments relating to the economic, environmental, energy, or federalism 
impacts that might result from this rulemaking action. See the 
ADDRESSES section above for methods to submit comments.

 A. Submitting Comments

    If you submit comments, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and materials online or by 
mail, but please use only one of these means. We recommend that you 
include your name and a mailing address, an email address, or a phone 
number in the body of your document so that we can contact you if we 
have questions regarding your submission. ICE will file all comments 
sent to our docket address, as well as items sent to the address or 
email under the FOR FURTHER INFORMATION CONTACT section above, in the 
public docket, except for comments containing marked confidential 
information. If you submit a comment, it will be considered received by 
ICE when it is received at the Docket Management Facility.
    To submit your comments online, go to http://www.regulations.gov, 
and insert the complete Docket number starting with ``ICEB'' in the 
``Search'' box. Click on the ``Comment Now!'' box and input your 
comment in the text box provided. Click the ``Continue'' box, and if 
you are satisfied with your comment, follow the prompts to submit it. 
If you submit your comments by mail, submit them in an unbound format, 
no larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
scanning and filing. Mailed submissions may be on paper, electronic 
disk, or CD-ROM. If you would like us to acknowledge receipt of 
comments submitted by mail, include with your comments a self-
addressed, stamped postcard or envelope on which the docket number 
appears. We will stamp the date of receipt on the postcard and mail it 
to you.
    We will consider all comments and materials received during the 
comment period and may change this proposed rule based on your 
comments. The docket is available for public inspection before and 
after the comment closing date.

 B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov and 
insert the complete Docket number starting with ``ICEB'' in the 
``Search'' box. Click on the ``Open Docket Folder,'' and you can click 
on ``View Comment'' or ``View All'' under the ``Comments'' section of 
the page. Individuals without internet access can make alternate 
arrangements for viewing comments and documents related to this 
rulemaking by contacting ICE through the FOR FURTHER INFORMATION 
CONTACT section above.

 C. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may wish to consider limiting the 
amount of personal information that you provide in any voluntary public 
comment submission you make to DHS. DHS may withhold information 
provided in comments from public viewing that it determines may impact 
the privacy of an individual or is offensive. For additional 
information, please read the Privacy Act notice that is available via 
the link in the footer of http://www.regulations.gov.

 D. Public Meeting

    We do not currently plan to hold a public meeting, but you may 
submit a request for one on or before November 18, 2015 using one of 
the methods specified under the ADDRESSES section above. In your 
request, explain why you believe a public meeting would be beneficial. 
If we determine that one would aid this rulemaking, we will hold one at 
a time and place announced by a later notice in the Federal Register.

II. Abbreviations

CIP Classification of Instructional Program
CFR Code of Federal Regulations
DHS Department of Homeland Security
DOS Department of State
DSO Designated School Official
EBSVERA Enhanced Border Security and Visa Entry Reform Act of 2002
FDMS Federal Document Management System
ICE U.S. Immigration and Customs Enforcement
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996
IFR Interim Final Rule
OPT Optional Practical Training
RIA Regulatory Impact Analysis
IRFA Initial Regulatory Flexibility Analysis
SEVP Student and Exchange Visitor Program
SEVIS Student and Exchange Visitor Information System
STEM Science, Technology, Engineering, or Mathematics
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services

III. Executive Summary

 A. Purpose of the Regulatory Action

    This proposed rule would affect F-1 nonimmigrant students who seek 
to obtain a STEM OPT extension, as well as F-1 nonimmigrant students 
who seek so-called Cap-Gap relief. The F-1 nonimmigrant classification 
is available to certain academic students seeking temporary admission 
to the United States as full-time students at an established college, 
university, seminary, conservatory, academic high school, elementary 
school, or other academic institution or in an accredited language 
training program. To obtain F-1 nonimmigrant classification, the 
student must be enrolled in a full course of study at a qualifying 
institution and have sufficient funds to self-support during the entire 
proposed course of study. Such course of study must occur at a school 
authorized by the U.S. government to accept international students.
    OPT is a form of temporary employment available to F-1 students 
(except those in English language training programs) that directly 
relates to and complements a student's study in the United States. A 
student can apply to engage in OPT during their academic program, known 
as ``pre-completion OPT,'' or after completing the academic program, 
known as ``post-completion OPT.'' A student can apply for 12 months of 
OPT at each education level (e.g., one 12-month OPT period at the 
bachelor's level and another 12-month period at the master's level). 
While school is in session, the student may work up to 20 hours per 
week pursuant to OPT.
    This notice of proposed rulemaking (NPRM) would make changes to the 
current OPT program by lengthening the extension of the OPT period for 
certain F-1 students who have earned STEM degrees. DHS first introduced 
an extension of OPT for STEM graduates in a 2008 interim final rule 
(2008 IFR). See 73 FR 18944. Under the 2008 IFR, an F-1 student with a 
STEM degree from a U.S. institution of higher education may be eligible 
for an additional 17 months of OPT (17-Month STEM OPT Extension), 
provided that the employer from which the student sought employment was 
enrolled in USCIS's E-Verify employment eligibility verification 
program. As discussed in

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further detail below, on August 12, 2015, the U.S. District Court for 
the District of Columbia ordered the vacatur of the 2008 IFR for 
procedural deficiencies in its promulgation, and remanded the issue to 
DHS. DHS is proposing this rule to reinstate the STEM OPT extension, 
with changes intended to enhance the academic benefit afforded by the 
extension and increase program oversight, including safeguards to 
protect U.S. workers.\1\
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    \1\ These changes are consistent with the direction provided in 
the Secretary of Homeland Security's November 20, 2014 memorandum 
entitled, ``Policies Supporting U.S. High Skilled Businesses and 
Workers.'' DHS recognizes the nation's need to evaluate, strengthen, 
and improve practical training as part of an overall strategy to 
enhance our nation's economic, scientific, and technological 
competitiveness. Highly skilled persons educated in the United 
States contribute significantly to the U.S. economy, including 
advances in entrepreneurial and research and development endeavors, 
which correlate highly with overall economic growth and job 
creation.
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 B. Summary of the Major Provisions of the Regulatory Action

    The proposal would again provide for an extension of OPT for 
certain F-1 students with STEM degrees. As compared to the 2008 IFR, 
the proposed rule includes the following changes:
     Lengthened STEM Extension Period for OPT. The proposal 
would increase the OPT extension period for STEM OPT students from the 
2008 IFR's 17 months to 24 months. The proposal would also make F-1 
students who subsequently enroll in a new academic program and earn 
another qualifying STEM degree at a higher educational level eligible 
for one additional 24-month STEM OPT extension.
     STEM Definition and CIP Categories for STEM OPT Extension. 
The proposed rule would more clearly define which fields of study (more 
specifically, which Department of Education Classification of 
Instructional Program (CIP) categories) may serve as the basis for a 
STEM OPT extension. The proposal also sets forth a process for public 
notification in the Federal Register when DHS updates the list of 
eligible STEM fields on the Student and Exchange Visitor Program's 
(SEVP's) Web site.
     Mentoring and Training Plan. The proposal would require 
employers to implement formal mentoring and training programs to 
augment students' academic learning through practical experience, 
intended to equip students with a more comprehensive understanding of 
their selected area of study and broader functionality within that 
field.
     Previously Obtained STEM Degrees. The proposal would 
permit an F-1 student participating in post-completion OPT to use a 
prior eligible STEM degree from a U.S. institution of higher education 
as a basis to apply for a STEM OPT extension, as long as the student's 
most recent degree was also received from an accredited educational 
institution. Additionally, in order for such a student to be eligible 
for the STEM OPT extension, the employment opportunity must be directly 
related to the previously obtained STEM degree.
     Safeguards for U.S. Workers in Related Fields. To guard 
against adverse effects on U.S. workers, this proposal would require 
terms and conditions of a STEM practical training opportunity 
(including duties, hours, and compensation) to be commensurate with 
those applicable to similarly situated U.S. workers. In addition to 
requiring a related attestation in the Mentoring and Training Plan, an 
employer would also be required to attest that: (1) The employer has 
sufficient resources and trained personnel available to provide 
appropriate mentoring and training in connection with the specified 
opportunity; (2) the employer will not terminate, lay off, or furlough 
any full- or part-time, temporary or permanent U.S. workers as a result 
of providing the STEM OPT to the student; and (3) the student's 
opportunity assists the student in attaining his or her training 
objectives.
     School Accreditation and Employer Site Visits. The 
proposal would enhance the academic benefit and oversight of STEM OPT 
extensions by (1) generally limiting eligibility to students with 
degrees from schools that are accredited by an accrediting agency 
recognized by the Department of Education; and (2) clarifying DHS 
discretion to conduct employer on-site reviews at worksites to verify 
whether employers are meeting program requirements, including that they 
possess and maintain the ability and resources to provide structured 
and guided work-based learning experiences.
     Compliance Requirements. In addition to reinstating the 
2008 IFR's reporting and compliance requirements, the proposal would 
revise the number of days that an F-1 student may remain unemployed 
during the practical training period. The current program allows a 
student to be unemployed up to 90 days during his or her initial period 
of post-completion OPT, and up to an additional 30 days (for an 
aggregate of 120 days) if the student receives a 17-month STEM OPT 
extension. The proposed rule would retain the 90-day maximum period of 
unemployment during the initial period of post-completion OPT, but 
allow an additional 60 days (for an aggregate of 150 days) for students 
who obtain a 24-month STEM OPT extension.
    In addition to these changes (as compared to the 2008 IFR), the 
proposal would retain other provisions of the 2008 IFR, as follows:
     E-Verify and Reporting Requirements for STEM OPT 
Employers. The proposal would require STEM OPT employers to be enrolled 
in USCIS' E-Verify program and to report certain changes in the STEM 
OPT student's employment.
     Reporting Requirements for STEM OPT Students. The proposal 
would require STEM OPT students to report to DHS any changes to their 
names or addresses, as well as any changes to their employers' names or 
addresses. Students would also be required to periodically verify the 
accuracy of this reporting information.
     Cap-Gap Extension for F-1 Nonimmigrants with Timely Filed 
H-1B Petitions and Requests for Change of Status. The proposal would 
include the 2008 IFR's ``Cap-Gap'' provision, under which DHS would 
temporarily extend an F-1 student's duration of status and any current 
employment authorization if the student is the beneficiary of a timely 
filed H-1B petition and requests a change of status. The Cap-Gap 
extension would extend the OPT period until October 1 of the fiscal 
year for which the H-1B visa is being requested.

 C. Costs and Benefits

    The anticipated costs of compliance with the proposed rule, as well 
as the benefits, are discussed at length in section VI, entitled 
``Statutory and Regulatory Requirements--Executive Orders 12866 and 
13563.'' A combined Regulatory Impact Analysis (RIA) and an Initial 
Regulatory Flexibility Analysis (IRFA) are available in the docket as 
indicated under the Public Participation section of this preamble. A 
summary of the analysis follows.
    As shown in the Summary Table below, DHS estimates that the costs 
of the standards proposed in this rule would be approximately $503.3 
million over the period 2016-2025, discounted at 7 percent, or $71.7 
million per year when annualized at a 7 percent discount rate.
    With respect to benefits, making the STEM OPT extension available 
to additional students and extending the current 17-month extension 
will enhance students' ability to achieve the objectives of their 
courses of study by gaining valuable knowledge and skills through on-
the-job training that is often unavailable in their home countries. The 
proposed changes will also benefit

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

                      Summary Table--Estimated Costs and Benefits of NPRM, ($2014 millions)
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                                                   STEM OPT                    E-Verify                Total
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10-Year Cost Annualized at 7 Percent      $64.9.....................  $6.8......................           $71.7
 Discount Rate.
10-Year Cost Annualized at 3 Percent      $66.9.....................  $7.2......................             $74
 Discount Rate.
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Qualitative Costs.......................   Cost to students and schools resulting from proposed
                                           accreditation requirement;
                                           Cost to employers from the proposed requirement to provide
                                           STEM OPT students commensurate compensation to similarly situated
                                           U.S. workers; and
                                           Decreased practical training opportunities for students no
                                           longer eligible for the program due to proposed improvements to the
                                           STEM OPT extension.
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Monetized Benefits......................  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 that is often
                                           unavailable in their home countries;
                                           Increased global attractiveness of U.S. colleges and
                                           universities; and
                                           Increased program oversight and strengthened requirements for
                                           program participation, and new protections for U.S. workers.
----------------------------------------------------------------------------------------------------------------
Net Benefits............................  N/A.......................  N/A.......................             N/A
----------------------------------------------------------------------------------------------------------------

IV. Background and Purpose

A. Authority, Regulatory History, and Recent Litigation

    The Secretary of Homeland Security (Secretary) has broad authority 
to administer and enforce the nation's immigration laws. See generally 
6 U.S.C. 202; Immigration and Nationality Act of 1952, as amended, 
(INA) section 103, 8 U.S.C. 1103. Section 101(a)(15)(F)(i) of the INA 
establishes the F-1 nonimmigrant classification for individuals who 
wish to come to the United States temporarily to enroll in a full 
course of study at an academic or language training school certified by 
ICE's SEVP. 8 U.S.C. 1101(a)(15)(F)(i). The INA provides the Secretary 
with broad authority to determine the time and conditions under which 
nonimmigrants, including F-1 students, may be admitted to the United 
States. 8 U.S.C. 1184(a)(1), INA section 214(a)(1). The Secretary also 
has broad authority to determine which individuals are ``authorized'' 
for employment in the United States. 8 U.S.C. 1324a(h)(3).
    Federal agencies dealing with immigration have long interpreted 
section 101(a)(15)(F)(i) of the INA and related authorities to 
encompass on-the-job-training that supplements classroom training. See, 
e.g., 12 FR 5355, 5357 (Aug. 7, 1947) (authorizing employment for 
practical training under certain conditions, pursuant to statutory 
authority substantially similar to current INA section 
101(a)(15)(F)(i)); 38 FR 35425, 35426 (Dec. 28, 1973) (also 
authorizing, pursuant to the INA, employment for practical training 
under certain conditions).\2\
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    \2\ During a brief period following the Immigration Act of 1990, 
Congress expanded employment authorization for foreign students by 
allowing for a three-year pilot program in which students could be 
employed off-campus in positions unrelated to the student's field of 
study. Pub. L. 101-649, sec. 221(a), 104 Stat. 4978, 5027 (Nov. 29, 
1990). In general, however, practical training has historically been 
limited to the student's field of study.
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    ICE manages and oversees significant elements of the F-1 
nonimmigrant student process, including the certification of schools 
and institutions in the United States that enroll nonimmigrant 
students. In overseeing these institutions, ICE uses SEVIS to track and 
monitor foreign students, and communicate with the schools that enroll 
them, while they are in the United States and participating in 
educational opportunities. This tracking

[[Page 63380]]

and monitoring program is required and supported by additional 
statutory and other authority.\3\
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    \3\ DHS derives its authority to manage these programs from 
several sources, including, in addition to the authorities cited 
above, section 641 of Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 
3009-546, 3009-704 (Sep. 30, 1996) (codified as amended at 8 U.S.C. 
1372), which authorizes the creation of a program to collect current 
and ongoing information provided by schools and exchange visitor 
programs regarding F and other nonimmigrants during the course of 
their stays in the United States, using electronic reporting 
technology where practicable. Consistent with this statutory 
authority, DHS manages these programs pursuant to Homeland Security 
Presidential Directive--2 (HSPD--2) (Combating Terrorism Through 
Immigration Policies, Oct. 29, 2001, as amended by HSPD--5 
(Management of Domestic Incidents, Feb. 28, 2003, Compilation of 
HSPDs (updated through Dec. 31, 2007) available at http://www.gpo.gov/fdsys/pkg/CPRT-110HPRT39618/pdf/CPRT-110HPRT39618.pdf), 
which requires the Secretary of Homeland Security to conduct 
periodic, ongoing reviews of institutions certified to accept F 
nonimmigrants, and to include checks for compliance with 
recordkeeping and reporting requirements, see Weekly Comp. Pres. 
Docs., 37 WCPD 1570, http://www.gpo.gov/fdsys/granule/WCPD-2001-11-05/WCPD-2001-11-05-Pg1570/content-detail.html; and Section 502 of 
the Enhanced Border Security and Visa Entry Reform Act of 2002 
(EBSVERA), Pub. L. 107-173, 116 Stat. 543, 563 (May 14, 2002), which 
directs the Secretary to review the compliance with recordkeeping 
and reporting requirements under 8 U.S.C. 1101(a)(15)(F) and 1372, 
and INA 101(a)(15)(F), of all schools approved for attendance by F 
students within two years of enactment, and every two years 
thereafter. Moreover, the programs discussed in this rule, as is the 
case with all DHS programs, are carried out in keeping with DHS's 
primary mission that includes the responsibility to ``ensure that 
the overall economic security of the United States is not diminished 
by the efforts, activities, and programs aimed at securing the 
homeland.'' 6 U.S.C. 111(b)(1)(F).
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OPT Background
    A student in F-1 status may remain in the United States for the 
duration of his or her education if otherwise meeting the requirements 
for the maintenance of status. 8 CFR 214.2(f)(5)(i). Once an F-1 
student has completed his or her academic program and any subsequent 
period of OPT, the student must generally leave the United States 
unless he or she: enrolls in another academic program, either at the 
same school or at another SEVP-certified school; changes to a different 
nonimmigrant status; or otherwise legally extends his or her period of 
authorized stay in the United States. As noted, DHS regulations have 
long defined an F-1 student's duration of status to include a foreign 
student's practical training. See, e.g., 48 FR 14575, 14583 (Apr. 5, 
1983).\4\ An F-1 student is allowed a 60-day ``grace period'' after the 
completion of the academic program or OPT to prepare for departure from 
the United States. 8 CFR 214.2(f)(5)(iv).
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    \4\ See Washington Alliance of Tech. Workers v. U.S. Dep't of 
Homeland Security, No. 1:14-cv-00529, WL (D.D.C. Aug. 12, 2015) 
(slip op.), 25-26 (finding that DHS's interpretation permitting 
``employment for training purposes without requiring school 
enrollment'' is `` `longstanding' and entitled to [judicial] 
deference'').
---------------------------------------------------------------------------

    Unless an F-1 student meets certain limited exceptions, he or she 
may not be employed in the United States during the term of his or her 
F-1 status. DHS permits an F-1 student who has been enrolled on a full-
time basis for at least one full academic year in a college, 
university, conservatory, or seminary certified by SEVP, and who has 
otherwise maintained his or her status, to apply for practical training 
to work for a U.S. employer in a job directly related to his or her 
major area of study. 8 CFR 214.2(f)(10). DHS had previously limited the 
duration of OPT to a period of up to 12 months at a given educational 
level. An F-1 student may seek employment through OPT either during his 
or her academic program (pre-completion OPT) or immediately after 
graduation (post-completion OPT). The student remains in F-1 
nonimmigrant status throughout the OPT period. Thus, an F-1 student in 
post-completion OPT does not have to leave the United States within 60 
days after graduation, but instead has authorization to remain for the 
entire post-completion OPT period. 8 CFR 214.2(f)(5)(i). This initial 
post-completion OPT period (i.e., a period of practical training 
immediately following completion of an academic program) can be up to 
12 months, except in certain circumstances involving students who 
engaged in either pre-completion OPT or what is known as ``curricular 
practical training'' (CPT).\5\
---------------------------------------------------------------------------

    \5\ CPT provides a specially-designed program through which 
students can participate in an internship, alternative study, 
cooperative education, or similar programs. 52 FR 13223 (April 22, 
1987). Currently defined to also include practicums, CPT allows 
sponsoring employers to train F-1 nonimmigrant students as part of 
the students' established curriculum within their schools. 8 CFR 
214.2(f)(10)(i). CPT must relate to and be integral to a student's 
program of study. Unlike OPT and other training or employment, 
however, CPT can be full time even while a student is attending 
school that is in session. Schools have oversight of CPT through 
their DSOs, who are currently responsible for authorizing CPT that 
is directly related to the student's major area of study and 
reporting certain information, including the employer and location, 
the start and end dates, and whether the training is full time or 
part time. 8 CFR 214.2(f)(10)(i)(B).
---------------------------------------------------------------------------

    On April 8, 2008, DHS published an interim final rule in the 
Federal Register (73 FR 18944) that, in part, extended the maximum 
period of OPT from 12 to 29 months (through a 17-month ``STEM OPT 
extension'') for an F-1 student who obtained a degree in a designated 
STEM field from a U.S. institution of higher education and who was 
engaged in practical training with an employer enrolled in the E-Verify 
employment eligibility verification program. As a result of that rule, 
F-1 students granted STEM OPT extensions were required to report to 
their DSOs any changes in their names or addresses, as well as any 
changes in their employer's information (including name or address), 
and periodically validate the accuracy of this information. The rule 
further required employers of such students to report to the relevant 
DSO within two business days if a student was terminated from or 
otherwise left employment prior to the end of the authorized period of 
OPT. The rule allowed an F-1 student to apply for post-completion OPT 
within the 60-day grace period at the conclusion of his or her academic 
program. The rule also limited the total period in which students on 
initial post-completion OPT could be unemployed to 90 days. Students 
granted 17-month STEM OPT extensions were provided an additional 30 
days in which they could be unemployed, for an aggregate period of 120 
days.
    The 2008 IFR also addressed the so-called ``Cap-Gap'' problem, 
which resulted when the expiration of an F-1 student's OPT 
authorization occurred prior to the commencement of the validity of an 
H-1B petition filed on his or her behalf. Specifically, F-1 students on 
initial post-completion OPT frequently complete their period of 
authorized practical training in June or July of the year following 
graduation. If such students are beneficiaries of H-1B petitions and 
requests for change of status for H-1B classification commencing in the 
following fiscal year (beginning on October 1), they will be unable to 
obtain their H-1B status before their OPT period expires. Prior to the 
2008 IFR, such students were often required to leave the country for a 
few months until they were able to obtain their H-1B status on October 
1. The 2008 IFR addressed this problem through a Cap-Gap provision that 
briefly extended the F-1 nonimmigrant's authorized period of stay and 
employment authorization to enable the student to remain in the United 
States until they could obtain their H-1B status.
    DHS received over 900 comments in response to the 2008 IFR. Such 
comments were submitted by a range of entities and individuals, 
including schools and universities, students, professional 
associations, labor organizations, advocacy groups, and businesses. In 
addition, DHS engaged the public and affected schools in a series of 
meetings held across the

[[Page 63381]]

country during the 2008 IFR's public comment period. DHS added 
transcripts of questions and comments from those meetings to the docket 
for the 2008 IFR.\6\ Public comments received on the 2008 IFR, and 
other records, may be reviewed at the Docket for that rule, No. ICEB-
2008-0002, available at www.regulations.gov.
---------------------------------------------------------------------------

    \6\ Many of the comments submitted to the docket for the 2008 
IFR were requests for the addition of specific programs of study to 
the STEM Designated Degree Programs list. Other comments addressed a 
variety of key issues, including concerns about the potential impact 
of the extension of OPT, unemployment limits during the 17-month 
extension of STEM OPT, the E-Verify requirement for the 17-month 
extension of STEM OPT, the distinction between pre- and post-
completion OPT, and student reporting requirements. As noted below, 
this rule proposes changes in a number of these areas, based in part 
on public input received in 2008.
---------------------------------------------------------------------------

    As described immediately below, in light of the period of time that 
has elapsed since the 2008 IFR, and due to the vacatur of that rule, 
DHS has established a new docket for this rulemaking. DHS welcomes 
comments on all aspects of this new proposal. Comments submitted on the 
2008 IFR will not be automatically incorporated into the docket for 
this rulemaking; commenters should resubmit those comments as 
necessary. DHS intends to respond to any significant comments submitted 
in connection with this proposed rule in the final rule for this 
proceeding.
Washington Alliance Litigation Regarding the 2008 IFR
    On August 12, 2015, the U.S. District Court for the District of 
Columbia issued an order in the case of Washington Alliance of Tech. 
Workers v. U.S. Dep't of Homeland Security, No. 1:14-cv-00529,___ WL 
___ (D.D.C. Aug. 12, 2015) (Washington Alliance) (slip op.). Although 
the court held that the 2008 IFR rested upon a reasonable 
interpretation of the INA, the court also held that DHS violated the 
notice and comment provisions of the Administrative Procedure Act 
(APA), 5 U.S.C. 553, by promulgating the 2008 IFR without advance 
notice and opportunity for public comment.\7\ In its order, the court 
invalidated the 2008 IFR as procedurally deficient, and remanded the 
issue to DHS.
---------------------------------------------------------------------------

    \7\ The court withheld judgment on the agency's substantive 
rationale for the 2008 IFR specifically. See Washington Alliance, at 
p. 29, n.9. As noted, however, the court found ample support for the 
Government's longstanding practice of granting F-1 students 
employment authorization for practical training.
---------------------------------------------------------------------------

    With respect to DHS's interpretation of the F-1 student visa 
provisions in the INA, the court found ample support for DHS's 
longstanding practice of ``permit[ting F-1 student] employment for 
training purposes without requiring ongoing school enrollment.'' 
Washington Alliance, at *26-27. The court recognized the Secretary's 
broad authority under the INA ``to regulate the terms and conditions of 
a nonimmigrant's stay, including its duration.'' Id. at *29 (citing 8 
U.S.C. 1103(a), 1184(a)(1)). The court also recognized the Secretary's 
authority to consider the potential economic contributions and labor 
market impacts that may result from particular regulatory decisions. 
Id. (citing 6 U.S.C. 111(b)(1)(F)).
    As noted above, the court ultimately vacated the 2008 IFR on 
procedural grounds. Recognizing the disruption and uncertainty that an 
immediate vacatur might cause, however, the court stayed the vacatur 
until February 12, 2016, to provide time for DHS to correct the 
deficiency through notice-and-comment rulemaking. Id. at *37.\8\ The 
court specifically explained that the stay was necessary to avoid 
``substantial hardship for foreign students and a major labor 
disruption for the technology sector'' and that immediate vacatur of 
the STEM OPT extension would be ``seriously disruptive.'' Id. at *36.
---------------------------------------------------------------------------

    \8\ In an earlier preliminary ruling in the case regarding 
plaintiffs challenge to DHS's general OPT and STEM OPT program, the 
court held that plaintiff did not have standing to challenge the 
general OPT program on behalf of its members because it had not 
identified a member of its association who suffered any harm from 
the general OPT program. See Washington Alliance of Tech. Workers v. 
U.S. Dep't of Homeland Security, 74 F. Supp. 3d 247, 252 & n.3 
(D.D.C. 2014). The court held in the alternative that the challenge 
to the general OPT program was barred by the applicable statute of 
limitations.
---------------------------------------------------------------------------

    Litigation in this matter is ongoing, as the plaintiff has appealed 
a portion of the court's August 12, 2015 decision. It is thus unclear 
what the final disposition of the case may be. Nevertheless, it is 
clear that if DHS does not act before the court's vacatur takes effect 
on February 12, 2016, a significant number of students may be unable to 
pursue valuable training opportunities that would otherwise be 
available to them.
    With this proposed rule, DHS proposes to provide an extension of 
OPT for certain STEM students, but with significant revisions as 
compared to the 2008 IFR. DHS thanks the public for its helpful input 
and engagement during the public comment period related to the 2008 
IFR. In light of the aforementioned developments, however, DHS has 
determined that it will replace the 2008 IFR in its entirety and seek a 
fresh round of public comment via this proposed rule. As described in 
more detail throughout this preamble, the revisions proposed by this 
rule are intended to continue and further enhance the academic benefit 
of the STEM OPT extension, while protecting STEM OPT students and U.S. 
workers. DHS welcomes public input on all aspects of this proposal and 
will consider and respond to comments on the newly proposed rule 
following the comment period.

 B. ICE and SEVIS

    As noted above, ICE's SEVP serves as the central liaison between 
the U.S. educational community and U.S. government agencies that have 
an interest in information regarding F and M nonimmigrants.\9\ ICE 
directs and oversees the process by which schools interact with F and M 
students to obtain information relevant to their immigration status and 
relay that information to the U.S. Government. ICE uses the SEVIS 
system to certify schools and designate exchange visitor programs, and 
to monitor F, J,\10\ and M nonimmigrants during their stay in the 
United States.\11\
---------------------------------------------------------------------------

    \9\ A foreign student is admitted into the United States in F-1 
nonimmigrant status to attend an academic or language training 
school or in M-1 status to attend a vocational education school. An 
accompanying spouse or minor child may be admitted as an F-2 or M-2 
dependent.
    \10\ Under section 101(a)(15)(J) of the INA, 8 U.S.C. 
1101(a)(15)(J), a foreign citizen may be admitted into the United 
States in nonimmigrant status as an exchange visitor (J visa). The 
Department of State (DOS) designates and manages exchange visitor 
programs.
    \11\ See IIRIRA sec. 641 (codified as amended at 8 U.S.C. 1372) 
(requiring the creation of a program to collect current and ongoing 
information provided by schools and exchange visitor programs 
regarding F, J, or M nonimmigrants during the course of their stay 
in the United States, using electronic reporting technology where 
practicable). IIRIRA also authorized the Secretary, acting through 
SEVP, to certify schools to participate in F or M student 
enrollment.
---------------------------------------------------------------------------

    ICE's SEVP carries out its programmatic responsibilities through 
SEVIS, a Web-based data entry, collection and reporting system. DHS, 
DOS, and other government agencies, as well as SEVP-certified schools 
and DOS-designated exchange visitor programs, use SEVIS data to monitor 
F, J, and M nonimmigrants for the duration of their admission in the 
United States. ICE and DOS require certified schools and designated 
exchange visitor programs to update information on their approved F, J, 
and M nonimmigrants regularly after their admission into the United 
States and throughout their stay. SEVIS data is also used to verify the 
eligibility of individuals applying for F, J, and M nonimmigrant 
status, to expedite port of entry screening by U.S. Customs and

[[Page 63382]]

Border Protection, to assist USCIS in processing immigration benefit 
applications, to monitor nonimmigrant status maintenance and, as 
needed, to facilitate timely removal.

 C. Basis and Purpose of Regulatory Action

    As noted above, this proposed rule would effectively reinstitute 
portions of the 2008 IFR, with significant modifications and 
enhancements. Public comments received on the 2008 IFR were 
overwhelmingly positive. Although, as described in more detail below, 
many commenters recommended specific changes to the STEM OPT extension 
and some commenters objected to the 2008 IFR altogether, the vast 
majority of commenters--including students, educational institutions, 
advocacy groups, and STEM employers--expressed strong support for the 
rule's main provisions. DHS continues to believe that practical 
training is frequently a key element of F-1 students' educational 
experience, and that STEM students in particular may benefit from an 
extended period of time in practical training. For the reasons 
discussed below, DHS also believes that attracting and retaining such 
students is in the short-term and long-term economic, cultural, and 
security interests of the nation.
    DHS also recognizes that it must quickly address the imminent 
vacatur of the 2008 IFR, and the significant uncertainty surrounding 
the status of thousands of students in the United States. As of 
September 16, 2015, over 34,000 students were in the United States on a 
STEM OPT extension. In addition, hundreds of thousands of international 
students, most of whom are in F-1 status, have already chosen to enroll 
in U.S. educational institutions and are currently pursuing courses of 
study in fields that may provide eligibility for this program. Some of 
those students may have considered the opportunities offered by the 
STEM OPT extension when deciding whether to pursue their degree in the 
United States. DHS must therefore act swiftly to mitigate the 
uncertainty surrounding the 2008 IFR. Prompt action is particularly 
appropriate with respect to those students who have already committed 
to study in the United States, in part based on the possibility of 
furthering their education through an extended period of practical 
training in the world's leading STEM economy.\12\
---------------------------------------------------------------------------

    \12\ The National Science Foundation reports that the United 
States is the largest single science and engineering R&D-performing 
nation in the world, accounting for just under 30% of the global 
total. See Science and Engineering Indicators 2014 (NSF) at Chapter 
4 (International Comparisons), at 4-17, available at http://www.nsf.gov/statistics/seind14/index.cfm/chapter-4. According to 
NSF, the United States expends $429 billion of the estimated $1.435 
trillion in global science and engineering R&D (p. 4-17), and 
business, government, higher education, and non-profits in the 
United States expend more than double that of any other country 
(Table 4-5).
---------------------------------------------------------------------------

1. Benefits of International Students in the United States
    In proposing this rule, DHS recognizes the substantial economic, 
scientific, technological, and cultural benefits provided by the F-1 
nonimmigrant program generally, and the STEM OPT extension in 
particular. As described below, international students have 
historically made significant contributions to the United States, both 
through the payment of tuition and other expenditures in the U.S. 
economy, as well as by significantly enhancing academic discourse and 
cultural exchange on campuses throughout the United States. In addition 
to these general benefits, STEM students further contribute through 
research, innovation, and the provision of knowledge and skills that 
help maintain and grow increasingly important sectors of the U.S. 
economy.
    Foreign students, for example, regularly contribute a significant 
amount of money into the U.S. economy. According to statistics compiled 
by the Association of International Educators (NAFSA), foreign students 
made a net contribution of $26.8 billion to the U.S. economy in the 
2013-2014 academic year.\13\ This contribution included tuition ($19.8 
billion) and living expenses for self and family ($16.7 billion), after 
adjusting for U.S. financial support ($9.7 billion).\14\ And public 
colleges and universities particularly benefit from the payment of 
tuition by foreign students, especially in comparison to the tuition 
paid by in-state students.\15\
---------------------------------------------------------------------------

    \13\ NAFSA: Association of International Educators, ``The 
Economic Benefits of International Students: $26.8 billion 
Contributed; 340,000 U.S. Jobs Supported; Economic Analysis for 
Academic Year 2013-2014'', available at http://www.nafsa.org/_/File/_/eis2014/USA.pdf.
    \14\ Id.
    \15\ Washington Post, ``College Group Targets Incentive Payments 
for International Student Recruiters'' (June 2, 2011), available at 
http://www.washingtonpost.com/local/education/college-group-targets-incentive-payments-for-international-student-recruiters/2011/05/31/AGvl5aHH_story.html.
---------------------------------------------------------------------------

    Foreign students also increase the benefits of academic exchange, 
while reinforcing ties with foreign countries and fostering increased 
understanding of American society.\16\ International students, for 
example ``enrich U.S. universities and communities with unique 
perspectives and experiences that expand the horizons of American 
students and [make] U.S. institutions more competitive in the global 
economy.'' \17\ At the same time, ``the international community in 
American colleges and universities has implications regarding global 
relationships, whether that is between nation-states, or global 
business and economic communities.'' \18\ International education and 
exchange at the post-secondary level in the United States builds 
relationships that ``promote cultural understanding and dialogue,'' 
integrating a global dimension into the purpose and functions of higher 
education through the ``diversity in culture, politics, religions, 
ethnicity, and worldview'' brought by international students in the 
United States.\19\
---------------------------------------------------------------------------

    \16\ See The White House, National Security Strategy 29 (May 
2010), available at https://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.
    \17\ U.S. Department of State, ``Why Internationalize,'' 
available at https://educationusa.state.gov/us-higher-education-professionals/why-internationalize (last visited Sept. 29, 2015).
    \18\ Pamela Leong, ``Coming to America: Assessing the Patterns 
of Acculturation, Friendship Formation, and the Academic Experiences 
of International Students at a U.S. College,'' Journal of 
International Students Vol. 5 (4): 459-474 (2015) at p. 459.
    \19\ Hugo Garcia and Maria de Lourdes Villareal, ``The 
``Redirecting'' of International Students: American Higher Education 
Policy Hindrances and Implications,'' Journal of International 
Students Vol. 4 (2): 126-136 (2014) at p. 132.
---------------------------------------------------------------------------

    Accordingly, foreign students provide substantial benefits to their 
U.S. colleges and universities, including beneficial economic and 
cultural impacts. A study by Duke University in 2013 analyzing 5,676 
alumni surveys showed that ``substantial international interaction was 
positively correlated with U.S. students' perceived skill development 
in a wide range of areas across three cohorts.'' \20\ Current research 
also suggests that international students contribute to the overall 
economy by building global connections between their hometowns and U.S. 
host cities.\21\ Evidence links skilled migration to transnational 
business creation, trade,

[[Page 63383]]

and direct investment between the United States and a migrant's country 
of origin.\22\
---------------------------------------------------------------------------

    \20\ Jiali Luo and David Jamieson-Drake, ``Examining the 
Educational Benefits of Interacting with International Students'' at 
96 (June 2013), available at https://jistudents.files.wordpress.com/2013/05/2013-volume-3-number-3-journal-of-international-students-published-in-june-1-2013.pdf. The authors noted that U.S. 
educational institutions play an important role in ensuring U.S. 
students benefit as much as possible from this interaction.
    \21\ Brookings Institution, ``The Geography of Foreign Students 
in U.S. Higher Education: Origins and Destinations'' (August 29, 
2014), available at http://www.brookings.edu/research/interactives/2014/geography-of-foreign-students#/M10420.
    \22\ Sonia Plaza, Diaspora resources and policies, in 
International Handbook on the Economics of Migration, 505-529 
(Amelie F. Constant and Klaus F. Zimmermann, eds., 2013).
---------------------------------------------------------------------------

    Foreign STEM students, of course, contribute to the United States 
in all the ways mentioned above. But they also contribute more 
specifically to a number of advanced and innovative fields that are 
critical to national prosperity and security. By conducting scientific 
research, developing new technologies, advancing existing technologies, 
and creating new products and industries, for example, STEM workers 
diversify the economy and drive economic growth, while also producing 
increased employment opportunities and higher wages.\23\ A premise 
supported by economic research is that Scientists, Technology 
professionals, Engineers, and Mathematicians (STEM workers) are 
fundamental inputs in scientific innovation and technological adoption, 
critical drivers of productivity growth in the United States.\24\ For 
example, research has shown that foreign students who earn a degree and 
remain in the United States are more likely than native-born workers to 
engage in activities, such as patenting and the commercialization of 
patents, that increase U.S. labor productivity.\25\ Similarly, other 
research has found that a one percentage-point increase in immigrant 
college graduates' population share increases patents per capita by 9 
to 18 percent.\26\ Research has also shown that foreign-born workers 
are particularly innovative, especially in research and development, 
and that they have positive spillover effects on native-born 
workers.\27\ One paper, for example, shows that foreign-born workers 
patent at twice the rate of U.S.-born workers, and that U.S.-born 
workers patent at greater rates in areas with more immigration.\28\ The 
quality of the nation's STEM workforce in particular has played a 
central role in ensuring national prosperity over the last century and 
helps bolster the nation's economic future.\29\ This, in turn, has 
helped to enhance national security, which is dependent on the nation's 
ability to maintain a growing and innovative economy.\30\ Innovation is 
crucial for economic growth, which in turn is vital to continued 
funding for defense and security.\31\
---------------------------------------------------------------------------

    \23\ See Michael Greenstone and Adam Looney, ``A Dozen Economic 
Facts About Innovation'' 2-3, available at http://www.brookings.edu/
~/media/research/files/papers/2011/8/innovation-greenstone-looney/
08_innovation_greenstone_looney.pdf [hereinafter Greenstone and 
Looney]; Bureau of Labor Statistics 2014 data show that employment 
in occupations related to STEM has been projected to grow more than 
9 million, or 13 percent, during the period between 2012 and 2022, 2 
percent faster than the rate of growth projected for all 
occupations. Bureau of Labor Statistics, Occupational Outlook 
Quarterly, Spring 2014, ``STEM 101: Intro to Tomorrow's Jobs'' 6, 
available at http://www.stemedcoalition.org/wp-content/uploads/2010/05/BLS-STEM-Jobs-report-spring-2014.pdf. See also, Australian 
Government, Strategic Review of the Student Visa Program 2011 
Report, ix, 1 (June 30, 2011), available at http://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/2011-knight-review.pdf#search=knight%20review (concluding 
that the economic benefit of international masters and doctoral 
research students includes third-party job creation).
    \24\ See e.g., Giovanni Peri, Kevin Shih, Chad Sparber, 
``Foreign STEM Workers and Native Wages and Employment in U.S. 
Cities,'' (National Bureau of Economic Research, May 2014), 
available at http://www.nber.org/papers/w20093.
    \25\ Jennifer Hunt, ``Which Immigrants are Most Innovative and 
Entrepreneurial? Distinctions by Entry Visa,'' Journal of Labor 
Economics Vol 29 (3): 417-457 (2011).
    \26\ Jennifer Hunt and Marjolaine Gauthier-Loiselle, ``How Much 
Does Immigration Boost Innovation?'' American Economic Journal: 
Macroeconomics 2: 31-56 (2010).
    \27\ Id.
    \28\ Id.
    \29\ Greenstone and Looney, supra note 23, at 2-3.
    \30\ See Congressional Research Service, Economics and National 
Security: Issues and Implications for U.S. Policy 28, available at 
https://www.fas.org/sgp/crs/natsec/R41589.pdf [hereinafter Economics 
and National Security]; see also The White House, National Security 
Strategy 16 (Feb. 2015), available at https://www.whitehouse.gov/sites/default/files/docs/2015_national_security_strategy.pdf 
(``Scientific discovery and technological innovation empower 
American leadership with a competitive edge that secures our 
military advantage, propels our economy, and improves the human 
condition.'') [hereinafter 2015 National Security Strategy]; The 
White House, National Security Strategy 29 (May 2010), available at 
https://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (``America's long-term leadership 
depends on educating and producing future scientists and 
innovators.'').
    \31\ The 2015 National Security Strategy concludes that ``the 
American economy is an engine for global growth and a source of 
stability for the international system. In addition to being a key 
measure of power and influence in its own right, it underwrites our 
military strength and diplomatic influence. A strong economy, 
combined with a prominent U.S. presence in the global financial 
system, creates opportunities to advance our security.'' 2015 
National Security Strategy, supra note 30, at 15.
---------------------------------------------------------------------------

2. Increased Competition for International Students
    DHS recognizes that the United States has long been a global leader 
in international education. The number of foreign students affiliated 
with U.S. colleges and universities grew by 72 percent between 1999 and 
2013 to a total of 886,052.\32\ However, although the overall number of 
foreign students increased over that period, the nation's share of such 
students decreased. In 2001, the United States received 28 percent of 
international students; by 2011 that share had decreased to 19 
percent.\33\ Countries such as Canada, the United Kingdom, New Zealand, 
Australia, Malaysia, Taiwan, and China are actively instituting new 
strategies to attract international students.\34\
---------------------------------------------------------------------------

    \32\ Pew Research Center, ``Growth from Asia Drives Surge in 
U.S. Foreign Students'' (June 18, 2015), available at http://www.pewresearch.org/fact-tank/2015/06/18/growth-from-asia-drives-surge-in-u-s-foreign-students/ (citing Institute for International 
Education, Open Doors Data: International Students: Enrollment 
Trends, available at http://www.iie.org/Research-and-Publications/Open-Doors/Data/International-Students/Enrollment-Trends/1948-2014).
    \33\ Organization for Economic Co-operation and Development 
(OECD) 2014, ``Education at a Glance 2014: OECD Indicators,'' OECD 
Publishing at http://dx.doi.org/10.1787/eag-2014-en or http://www.oecd.org/edu/eag.htm.
    \34\ University World News Global Edition Issue 376, ``Schools 
are the New Battleground for Foreign Students'' (July 15, 2015), 
available at http://www.universityworldnews.com/article.php?story=201507150915156.
---------------------------------------------------------------------------

    For example, Canada also recognizes that educational institutions 
need international students to compete in the ``global race for 
research talent.'' \35\ In April, 2008, Canada modified its Post-
Graduation Work Permit Program to allow international students who have 
graduated from a recognized Canadian post-secondary institution to stay 
and gain valuable post-graduate work experience for a period equal to 
the length of the student's study program, up to a maximum of three 
years, with no restrictions on type of employment.\36\ This change 
resulted in a 64% increase in the number of post-graduation work 
permits issued to international students in 2008.\37\ By 2014, the 
number of international

[[Page 63384]]

students in the program more than doubled its 2008 total.\38\ In 
addition, Canada aims to double the number of international students in 
the country to 450,000 by 2022.\39\
---------------------------------------------------------------------------

    \35\ Citizenship and Immigration Canada, ``Evaluation of the 
International Student Program'' 14 (July 2010) available at http://www.cic.gc.ca/english/pdf/research-stats/2010-eval-isp-e.pdf (citing 
Association of Universities and Colleges of Canada, Momentum: The 
2008 report on university research and knowledge mobilization: A 
Primer: Driver 2: Global race for research talent, 3 (2008) 
[hereinafter Evaluation of the Int'l Student Program].
    \36\ Citizenship and Immigration Canada, Study permits: Post 
Graduation Work Permit Program, available at http://www.cic.gc.ca/english/resources/tools/temp/students/post-grad.asp [hereinafter 
Canadian Study permits]. Similarly, Australia, now offers 
international students who graduate with a higher education degree 
from an Australian education provider, regardless of their field of 
study, a post-study work visa for up to four years, depending on the 
student's qualification. Students who complete a bachelor's degree 
may receive a two-year post study work visa, research graduates with 
a master's degree are eligible for a three-year work visa, and 
doctoral graduates are eligible for a four-year work visa. See 
Australian Department of Immigration and Border Protection, 
Application for a Temporary Graduate visa, available at http://www.border.gov.au/FormsAndDocuments/Documents/1409.pdf [hereinafter 
Australian Temporary Grad. visa].
    \37\ Evaluation of the Int'l Student Program, supra note 29, at 
9.
    \38\ Citizenship and Immigration Canada, Quarterly 
Administrative Data Release, available at http://www.cic.gc.ca/english/resources/statistics/data-release/2014-Q4/index.asp.
    \39\ University World News Global Edition, Schools are the New 
Battleground for Foreign Students, July 15, 2015, Issue 376, 
available at http://www.universityworldnews.com/article.php?story=201507150915156.
---------------------------------------------------------------------------

    In light of the United States' decrease in the percentage of 
international students received, and increased global efforts to 
attract them, DHS believes that the United States must take additional 
steps to improve these students' educational experience (both academic 
and practical) to ensure that we do not continue to lose ground. This 
is particularly true for foreign STEM students, who have comprised a 
significant portion of students in STEM degree programs in the United 
States, particularly at the graduate degree level.
    The difference is particularly stark at the doctoral level, where 
foreign students earned 56.9 percent of all doctoral degrees in 
engineering; 52.5 percent of doctoral degrees in computer and 
information sciences; and approximately half the doctoral degrees in 
mathematics and statistics in the 2012-2013 academic year.\40\ 
Recognizing that the international education programs for these 
students are increasingly competitive, DHS is committed to helping U.S. 
educational institutions contend with the expanded and diverse global 
opportunities for international study.
---------------------------------------------------------------------------

    \40\ Pew Research Center, ``Growth from Asia Drives Surge in 
U.S. Foreign Students'' (June 18, 2015), available at http://www.pewresearch.org/fact-tank/2015/06/18/growth-from-asia-drives-surge-in-u-s-foreign-students/.
---------------------------------------------------------------------------

3. The Need to Improve the Existing STEM OPT Extension
    With this proposed rule, DHS also recognizes the need to strengthen 
the existing STEM OPT extension to enhance the academic benefit of the 
program and maintain the nation's economic, scientific, and 
technological competitiveness. DHS is working to find new and 
innovative ways to encourage international STEM students to choose the 
United States as a destination for their studies. This proposal, in 
addition to including a modified version of the STEM OPT extension from 
the 2008 IFR, would increase the maximum training time period for STEM 
students, require a formal mentoring and training plan for each STEM 
OPT extension, and take steps to strengthen protections for F-1 
nonimmigrant students and U.S. workers. Providing an on-the-job 
educational experience through a U.S. employer qualified to develop and 
enhance skills through practical application has been DHS's primary 
guiding objective.
    Many of the elements of this proposed rule have been the result of 
public comment on the 2008 IFR, which contained input from a range of 
stakeholders, including students and the broader academic community. 
This proposal also incorporates recommendations from the Homeland 
Security Academic Advisory Committee (HSAAC).\41\ Following an in-depth 
review of stakeholder feedback, DHS believes that the changes proposed 
by this rule to the existing STEM OPT extension would benefit both F-1 
students and international study programs in the United States, while 
adding important protections.
---------------------------------------------------------------------------

    \41\ The HSAAC provides advice and recommendations to the 
Secretary and senior leadership on matters related to homeland 
security and the academic community, including: student and recent 
graduate recruitment, international students, academic research and 
faculty exchanges, campus resilience, homeland security academic 
programs, and cybersecurity. See U.S. Department of Homeland 
Security, Homeland Security Academic Advisory Council Charter, 
available at http://www.dhs.gov/publication/hsaac-charter.
---------------------------------------------------------------------------

    The changes will help improve the ability of F-1 STEM students to 
gain valuable on-the-job training from employers qualified to develop 
and enhance skills through practical application. Maintaining and 
improving practical training for STEM students provides these students 
with an improved ability to absorb a full range of project-based 
practical skills and knowledge directly related to their study.
    The proposed changes will also help the nation's colleges and 
universities remain globally competitive, including by improving their 
ability to attract foreign STEM students to study in the United States. 
As noted above, these students enrich the cultural and academic life of 
college and university campuses throughout the United States and make 
important contributions to the U.S. economy and academic sector. The 
changes proposed in this rule will help strengthen the overall F-1 
program in the face of growing international competition for the 
world's most promising international students.
    Additionally, safeguards such as employer attestations, requiring 
employers to enroll in E-Verify, providing for DHS site visits, and 
requiring that STEM training opportunities provide commensurate terms 
and conditions to those provided to U.S. workers will help protect both 
STEM OPT students and U.S. workers. Implementing the changes proposed 
in this rule thus will more effectively assist STEM OPT students with 
achieving the objectives of their courses of study while also 
benefiting U.S. academic institutions and guarding against adverse 
effects on U.S. workers.
    Finally, DHS notes that the focus of this rule on the extension of 
OPT for STEM students also represents a step by the agency to improve a 
discrete portion of the practical training program.\42\ DHS is not 
considering adding the requirements contained within this rulemaking to 
the general OPT program at this time. DHS may, however, consider the 
impacts of these proposed changes, once implemented, as a model for 
possible future changes to practical training programs more generally.
---------------------------------------------------------------------------

    \42\ During calendar year 2014, the number of students 
participating in a STEM OPT extension represented approximately 8.5 
percent of all OPT participation.
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 V. Discussion of Elements of the STEM OPT Extension

A. Including a STEM OPT Extension Within the OPT Program

    As referenced above, DHS is taking this action to include a STEM 
OPT extension as part of the OPT program under the F-1 nonimmigrant 
classification in order to better ensure, among other important 
national interests, that the U.S. academic sector can remain 
competitive globally. Enabling continued extended OPT for qualifying 
students with experience in STEM fields is consistent with DHS's 
``Study in the States'' initiative, announced after the 2008 IFR in 
September 2011 to encourage international students to study in the 
United States. That initiative particularly focused on enhancing our 
nation's economic, scientific and technological competitiveness by 
finding new ways to encourage talented international students to become 
involved in expanded post-graduate opportunities in the United States. 
The initiative has taken various steps to enhance and improve the 
Nation's nonimmigrant student programs.\43\
---------------------------------------------------------------------------

    \43\ See ``Study in the States,'' U.S. Department of Homeland 
Security, http://studyinthestates.dhs.gov.
---------------------------------------------------------------------------

    The proposed rule would enhance the ability of F-1 students to 
achieve the objectives of their courses of study while also benefiting 
the U.S. economy. More students will return home confident in their 
training, ready to begin a career in their field of study; others may 
take advantage of other provisions proposed herein to request to

[[Page 63385]]

change status following a STEM OPT extension and help further drive 
economic growth and cultural exchange in the United States.

B. STEM Extension Period for OPT

    As noted above, in the 2008 IFR, DHS implemented a 17-month STEM 
OPT extension to provide STEM students and employers with improved OPT 
opportunities beyond the initial year of practical training. The 17-
month period was intended to allow STEM students to receive additional 
practical experience aligned with their educational degree, and it 
would generally terminate near the beginning of the fiscal year. 
Following seven years of experience with the STEM OPT extension, DHS 
has decided in this rule to re-evaluate its length. Consistent with the 
discussion above, DHS believes the STEM OPT extension should first and 
foremost be targeted to complement the student's academic experience. 
The length of any extension should aim to produce an optimal 
educational experience in the relevant field of study, particularly 
given the complex nature of STEM projects and associated skill-
development that require relatively lengthy time frames. The length 
should be conditioned on full compliance with the other requirements 
set forth in this preamble.
    DHS proposes in this rule to increase the STEM OPT extension period 
to 24 months for students meeting the qualifying requirements. This 24-
month extension, when combined with the 12 months of initial post-
completion OPT, would effectively allow STEM students up to 36 months 
of practical training. DHS would also provide, for students who 
subsequently attain another STEM degree at a higher educational level, 
the ability to participate in an additional 24-month extension of any 
post-completion OPT based upon that second STEM degree.\44\ The 
duration of an extension would be set at 24 months, rather than limited 
to a shorter period, due to the complexity and typical durations of 
research, development, testing, and other projects commonly undertaken 
in STEM fields. Affording greater participation in STEM training 
through changes to the period of the STEM OPT extension would also help 
the nation and its academic institutions remain competitive in light of 
global efforts offering international students longer post-study 
training experience without restrictions on the type of work that may 
be performed.\45\
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    \44\ DHS notes that, under this proposal, a student seeking to 
obtain a second STEM OPT extension during his or her lifetime will 
be unable to link this extension with his or her first extension. 
The student would need to complete a new initial post-completion 
practical training period and request a new STEM extension based on 
a different STEM degree. DHS welcomes comments on this aspect of the 
proposal.
    \45\ See, e.g., Canadian Study permits and Australian Temporary 
Grad. visa, supra note 36.
---------------------------------------------------------------------------

    DHS considered many factors in determining the proposed length for 
an improved STEM OPT extension period. An important consideration was 
the general duration of projects to be pursued by students on STEM OPT 
extensions. DHS believes that students participating in practical 
training in STEM fields should be encouraged to pursue meaningful 
projects that contribute to a deeper understanding of their field of 
study and help develop the practical skills necessary to advance their 
careers. This type of significant project--often involving a grant or 
fellowship application, management of grant money, focused research, 
and publication of a report--typically requires several years to 
complete. Stakeholders have indicated, moreover, that this process 
often takes longer in the STEM community than in other academic or 
business areas. For example, the National Science Foundation (NSF) 
typically funds projects through grants that last for up to three 
years.\46\ And in many fields such as mathematics, computer science, 
and the social sciences, NSF is the major source of federal 
funding.\47\
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    \46\ Id. at sec. II.c.2.a.(4)(b) (``The proposed duration for 
which support is requested must be consistent with the nature and 
complexity of the proposed activity. Grants are normally awarded for 
up to three years but may be awarded for periods of up to five 
years.''). For instance, NSF funding rate data show that in fiscal 
years 2012-2014, grant awards for biology were provided for an 
average duration of 2.87, 2.88, and 2.81 years, respectively.
    \47\ ``About the National Science Foundation,'' NSF, http://www.nsf.gov/about/. Such grants are commonly solicited by and 
awarded to organizations similar to those in the STEM OPT employer 
community, including universities, colleges, and research 
laboratories having strong capabilities in scientific or engineering 
research or education, and cooperative projects that involve both 
universities and the private sector. See NSF, ``Grant Proposal 
Guide'' (December 2014), available at http://www.nsf.gov/pubs/policydocs/pappguide/nsf15001/gpg_1.jsp#categories (listing 
categories of organizations that are eligible to submit grant 
proposals). Based on SEVIS data, three of the top six employers 
offering STEM OPT opportunities and employing STEM OPT students that 
have begun over the past five years are either higher education 
institutions or entities conducting research affiliated with 
universities.
---------------------------------------------------------------------------

    Fostering integration of research and education through the types 
of programs, projects, and activities described above will help 
recruit, train, and prepare a diverse STEM workforce to advance the 
frontiers of science and participate in the U.S. technology-based 
economy.\48\ Combined with the initial 12-month OPT period, a maximum 
24-month STEM OPT extension would provide students a sufficient 
opportunity to participate through the life of such a grant.\49\ 
Accordingly, and following consultation with the Department of 
Education and the National Science Foundation (NSF), DHS believes that 
an appropriate benchmark for the maximum duration of OPT for STEM 
students is the standard duration of an NSF grant--approximately three 
years.
---------------------------------------------------------------------------

    \48\ Id., available at http://www.nsf.gov/pubs/policydocs/pappguide/nsf15001/gpg_2.jsp.
    \49\ Although DHS has considered tailoring the length of the 
STEM OPT extension in this rule to individual student practical 
training proposals, DHS's initial assessment is that an across-the-
board maximum period for such extensions would be significantly more 
straightforward to administer and would also be consistent with past 
administration of the general OPT program, as well as the existing 
STEM OPT extension.
---------------------------------------------------------------------------

    DHS anticipates that the 24-month extension would significantly 
enhance the academic benefit of a STEM student's OPT experience. As 
noted above, many research projects take years to complete, and under 
the new STEM OPT extension, a student would have increased 
opportunities to learn how to apply for a grant or fellowship, become a 
responsible steward of grant money, initiate a study or project, see 
the study or project through to conclusion, write a report and obtain 
peer review, and have the report published. DHS requests public comment 
and the submission of empirical data in relation to this proposition. 
In addition, DHS requests public comment regarding the length of 
research, development, testing and other projects for which STEM 
graduates (regardless of nationality) from U.S. universities are 
typically assigned in the workplace.
    DHS also proposes to allow a student who has completed a STEM OPT 
extension pursuant to previous study in the United States and who 
obtains another qualifying degree at a higher degree level (or has a 
qualifying prior degree, as discussed in more detail below), to qualify 
for eligibility for a second 24-month STEM OPT extension upon the 
expiration of the general period of OPT based on that additional 
degree.
    DHS requests public comment on the proposed 24-month STEM OPT 
extension and the ability for qualifying students to receive an 
additional such STEM OPT extension based on a second STEM degree. In 
particular, DHS requests comment from STEM students, educational 
institutions, and employers on the appropriate STEM OPT extension 
length to ensure that practical training

[[Page 63386]]

for STEM students is most meaningfully educational and beneficial to 
them, and less disruptive for institutions and employers. DHS is 
particularly interested in public input regarding whether 24 months is 
the appropriate duration for STEM OPT extensions, or whether a shorter 
or longer duration (e.g., 17 months or 36 months) is preferable, and 
why.
    As a transitional measure, DHS is also proposing to allow a subset 
of students already on a 17-month extension to take advantage of the 
proposed 24-month program, consistent with the requirements set forth 
in this proposed rule. Qualifying students would be able to request the 
balance of the modified extension up to 120 days before the end of the 
student's 17-month period. Such requesting students would have to meet 
all requirements of the new STEM OPT extension proposal, including 
submission of the Mentoring and Training Plan described below.
    With respect to applications for STEM OPT extension currently 
pending before DHS or submitted prior to the effective date of any 
final rule, DHS intends to adjudicate the application consistent with 
the regulations that existed at the time the application was submitted 
(i.e., such applications, if approved, would result in a 17-month 
extension). Following the effective date of a final rule with a 
different STEM OPT extension duration, a student would then be able to 
request the balance of the modified extension up to 120 days before the 
end of the student's 17-month period, provided the student meets all 
requirements of the new STEM OPT extension proposal, including 
submission of the Mentoring and Training Plan. In the alternative, a 
student with a pending application for a 17-month extension may also 
choose to withdraw that application and file a new application for the 
proposed 24-month STEM OPT extension.
    DHS is making every effort to have a final rule take effect prior 
to February 13, 2016, when the stay on the vacatur of the 2008 IFR is 
currently set to expire. In the event, however, that a final rule 
resulting from this rulemaking does not take effect before the vacatur 
of the 2008 IFR, DHS will lack clear regulatory authority to grant 
pending applications for STEM OPT extensions. In that case, DHS will 
evaluate options to address pending applications, such as returning 
such applications and requiring re-filing upon completion of a final 
rule. DHS seeks comments on these and other options for addressing 
pending applications if a final rule is not in place prior to the 
court's vacatur, including comments on the harm that such a gap may 
cause.
    DHS welcomes comments regarding each of the proposed transition 
procedures described above, including alternatives to the potential 
courses of action identified here.

 C. STEM Definition and CIP Categories for STEM OPT Extension

    The 2008 IFR first introduced the STEM Designated Degree Program 
list, which includes all Department of Education CIP codes that are 
eligible for the current 17-month extension. The 2008 IFR noted that 
any future changes to the list would be posted on SEVP's Web site, but 
did not set forth a formal definition for ``STEM fields'' or a public 
notice process regarding updates to the list. Many commenters on the 
2008 IFR indicated that the STEM OPT extension should be available to 
students in all fields of study, or that the list promulgated at that 
time be expanded to include various other degree programs. DHS has 
taken these concerns into consideration in crafting a proposed approach 
for this rule that seeks to strike a reasonable balance between the 
current understanding of STEM needs and potential future changes in 
these fields. The approach focuses on generally understood STEM degree 
fields that are of particular academic and practical demand for the 
U.S. and international community, while also ensuring flexibility for 
potential changes as fields of study in STEM sectors evolve with 
changes in technology, as well as in academic programs, interests and 
trends.
    DHS proposes in this rulemaking a general definition of ``STEM 
fields'' and proposes a process for public notification in the Federal 
Register when DHS updates the Designated Degree Program list on SEVP's 
Web site. DHS would continue to produce a list identifying the groups 
within the Department of Education's CIP taxonomy that qualify as 
appropriate categories for the STEM OPT extension. DHS may from time to 
time revise the Designated Degree Program list based upon the dynamic 
nature of STEM fields and potential changes to the CIP taxonomy.
    To provide a clear definition to guide changes to the STEM 
Designated Degree Program list, DHS proposes to utilize the description 
referenced by the Department of Education's National Center for 
Education Statistics (NCES), Institute of Education Services, to define 
``STEM fields.'' DHS would define ``STEM field'' as a field included in 
the Department of Education's CIP taxonomy within the summary groups 
containing mathematics, natural sciences (including physical sciences 
and biological/agricultural sciences), engineering/engineering 
technologies, and computer/information sciences, and related fields. 
DHS believes the NCES definition provides a sound basis because it not 
only encompasses many of the fields already contained on the current 
STEM Designated Degree Program list, but draws on the Department of 
Education's expertise in the area of higher education and academic 
studies generally. ICE often defers to the Department of Education's 
definitions or processes in the area of higher education. DHS therefore 
proposes that the definition of STEM fields encompass mathematics, 
natural sciences (including physical sciences and biological/
agricultural sciences), engineering/engineering technologies, and 
computer/information sciences, as well as related fields.\50\ DHS 
believes that a clear definition of the types of degree fields eligible 
under the regulation would improve the process for altering categories 
contained within the STEM Designated Degree Program list.
---------------------------------------------------------------------------

    \50\ U.S. Department of Education National Center for Education 
Statistics Institute of Education Sciences, ``Stats in Brief'' (July 
2009), available at http://nces.ed.gov/pubs2009/2009161.pdf.
---------------------------------------------------------------------------

    DHS believes that its definition of STEM fields should be tailored 
to capture those STEM fields of study for which an extension of 
practical training is most beneficial. DHS requests comment from the 
public on the academic benefit of the STEM OPT extension for STEM 
students generally as well as for specific STEM fields. DHS also 
requests comment on whether changes to the current content or structure 
of the list may be helpful or appropriate.\51\ Although DHS is not 
currently considering expanding the STEM OPT extension to non-STEM 
fields, commenters are encouraged to compare STEM and non-STEM fields 
of study for purposes of commenting on this definition. As is the 
current process, DHS envisions that, upon finalizing this proposed 
rule, the agency would continue to accept, for DHS review, suggested 
additions to the STEM Designated Degree Program list at 
[email protected]
---------------------------------------------------------------------------

    \51\ The current list is available in the docket for this 
rulemaking. Future revisions may include additional degrees, 
including degrees listed within the summary groups for Agriculture, 
Agriculture Operations, and Related Sciences; Computer and 
Information Sciences and Support Services; Engineering; Engineering 
Technologies and Engineering-Related Fields; Biological and 
Biomedical Sciences; Mathematics and Statistics; and Physical 
Sciences.

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[[Page 63387]]

D. Mentoring and Training Plan

    Multiple commenters to the 2008 IFR highlighted the important 
academic benefits associated with OPT participation. Commenters 
emphasized that real-world experience is a vital part of the 
educational experience, and that the opportunity for OPT participation 
draws high-quality students to the United States from around the world. 
Other commenters noted that the 2008 IFR did not include an explicit 
mechanism to inform employers of the purpose of or requirements 
associated with practical training.
    The proposed rule seeks to ensure that the STEM OPT extension more 
effectively enables STEM OPT students to obtain valuable practical work 
experience directly related to their fields of study. To achieve this 
aim, the proposed rule requires that employers incorporate a formal 
mentoring and training program for STEM OPT students. Mentoring is a 
time-tested and widely used strategic approach to developing 
professional skills. The mentor should be an experienced employee or 
group of employees who would teach and counsel the student. As part of 
this mentoring and training program, the employer would agree to take 
responsibility for the student's training and ensure that skill 
enhancement is the primary goal. The student would be required to 
prepare a formalized Mentoring and Training Plan with the employer and 
to submit the plan to the student's DSO before the DSO could recommend 
a STEM OPT extension in the student's SEVIS record. This would 
generally provide review of the Mentoring and Training Plan by the 
educational institution granting the degree related to the training. In 
cases where the student intends to use the newly proposed option of 
requesting an extension based on a previously-obtained degree, the 
review would come from the institution that provided the student's most 
recent degree (i.e., the institution whose official is certifying, 
based on SEVIS or official transcripts, that a prior STEM degree 
enables the student to continue his or her eligibility for the 
practical training).\52\
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    \52\ The proposed rule clarifies the student's responsibility to 
present his or her Mentoring and Training Plan to the DSO of the 
school of most recent enrollment, so that the DSO who has been 
involved with the student most recently would be the DSO responsible 
regarding all ongoing OPT. This change is a necessary result of this 
rule also proposing changes that could enable a student to engage in 
a STEM OPT opportunity related to a previously obtained degree.
---------------------------------------------------------------------------

    To better ensure that the STEM OPT extension fulfills the specific 
practical training needs of STEM students, the employer that intends to 
provide a STEM OPT opportunity to a student would work with the student 
to design a customized training plan to enhance the practical skills 
and methods the student studied while attaining his or her degree. Such 
training plans would require specific training goals, as well as a 
description of how those goals will be achieved.
    DHS also proposes that the student provide his or her DSO with an 
evaluation of his or her STEM OPT every six months, as well as a final 
evaluation at the conclusion of the OPT period. These evaluations would 
document the student's progress toward the agreed-upon training goals 
and thus better ensure that such goals are being met. The factors to be 
evaluated would be included on the Mentoring and Training Plan, which 
must be signed by both the student and the immediate supervisor at the 
student's workplace. The student's school of most recent enrollment 
would be responsible for ensuring ICE has access to records of student 
evaluations for a period of three years following completion of the 
student's STEM OPT training.
    DHS plans to incorporate the submission of the Mentoring and 
Training Plan into SEVIS at a later date. Until that time DHS may 
require the submission of the Plan to ICE or USCIS, including to USCIS 
when the student seeks certain benefit requests from USCIS, such as an 
application for employment authorization. Under 8 CFR 103.2(b)(8)(iii), 
USCIS may issue a Request for Evidence or Notice of Intent to Deny if 
all required initial evidence has been submitted, but the evidence 
submitted does not establish eligibility. Accordingly, USCIS may 
request a copy of the Mentoring and Training Plan, in addition to other 
documentation, when such documentation is necessary to determine an 
applicant's eligibility for the benefit, including instances when there 
is suspected fraud in the application.

 E. USCIS E-Verify Employment Verification Program

    The 2008 IFR provided that the STEM OPT extension would only be 
available to those students seeking employment or seeking to maintain 
employment with employers that are enrolled and in good standing in 
USCIS' E-Verify program. A number of commenters to the 2008 IFR 
addressed this provision. Some commenters believed that this provision 
would unduly limit the opportunities available to STEM OPT students; 
others expressed concern about reported inaccuracies in E-Verify-
related databases. Finally, some commenters stated that the E-Verify 
provision would not ensure electronic verification of all STEM OPT 
students, because the E-Verify program only applies to new hires and 
therefore would not apply to students who are using the STEM OPT 
extension to extend their employment with the same employer. A number 
of commenters acknowledged, however, that the program was improving and 
that participation in the E-Verify program was rapidly growing.
    DHS continues to believe that the E-Verify program is an important 
measure to ensure the integrity of the STEM OPT extension. The E-Verify 
program is an Internet-based service operated by USCIS, in partnership 
with the Social Security Administration (SSA). E-Verify is currently 
free to employers and is available in all 50 states, the District of 
Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. E-Verify 
electronically compares information contained on the Employment 
Eligibility Verification Form I-9 (herein Form I-9) with records 
contained in government databases to help employers verify the identity 
and employment eligibility of newly-hired employees. This program 
currently is the best means available for employers to determine 
employment eligibility of new hires and, in some cases, existing 
employees.
    Before an employer can participate in the E-Verify program, the 
employer must enter into a Memorandum of Understanding (MOU) with DHS 
and SSA. This memorandum requires employers to agree to abide by 
current legal hiring procedures and to follow required procedures in 
the E-Verify process to ensure that E-Verify maximizes the reliability 
and ease of use of the system, while preventing unauthorized disclosure 
of personal information and unlawful discriminatory practices based on 
national origin or citizenship status. Violation of the terms of this 
agreement by the employer is grounds for immediate termination of its 
participation in the program.\53\
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    \53\ See U.S. Citizenship and Immigration Services, The E-Verify 
Memorandum of Understanding for Employers, available at http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/MOU_for_E-Verify_Employer.pdf.
---------------------------------------------------------------------------

    Employers participating in E-Verify must still complete a Form I-9 
for each newly hired employee, as required under current law. Following 
completion of the Form I-9, the employer must enter the newly hired 
worker's information into the E-Verify system, which would then check 
that information against information

[[Page 63388]]

contained in government databases. For example, E-Verify compares 
employee information against more than 425 million records in the SSA 
database and more than 60 million records stored in the DHS database. 
At the start of 2015, over 98 percent of all employer queries were 
instantly verified as work authorized. Between 2008 (the year the 2008 
IFR included the original E-Verify requirement for STEM OPT employers) 
and the beginning of 2015, E-Verify participation by employers has 
increased by over 500 percent.\54\ E-Verify is now a well-established 
and important measure that would complement other oversight elements in 
this proposed rule, and it is the most efficient means available for 
employers to determine the employment eligibility of new hires, 
including students who are participating in the STEM OPT extension.
---------------------------------------------------------------------------

    \54\ U.S. Citizenship and Immigration Services, E-Verify 
Overview 8, available at http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/e-verify-presentation.pdf (noting that 87,758 employers were enrolled as of 
fiscal year 2008 compared to 568,759 employers as of fiscal year 
2015).
---------------------------------------------------------------------------

    It is important to note that once an employer enrolls in E-Verify, 
that employer is responsible for verifying all new hires, including 
newly hired students with STEM OPT extensions, at the hiring site(s) 
identified in the MOU executed between the employer and DHS. The 
earliest an employer may use E-Verify with respect to an individual is 
after the individual accepts an offer of employment and the employee 
and employer complete the Form I-9. The verification must be made no 
later than the end of three business days after the new hire's first 
day of employment. If, however, an employer enrolls in E-Verify to 
retain a student already employed pursuant to an initial 12-month grant 
of OPT, the employer would reverify the student's STEM OPT extension on 
Form I-9 but may not verify the employment eligibility of the employee 
in E-Verify, as the MOU generally prohibits the use of E-Verify with 
respect to existing employees.
    Additional information on enrollment and responsibilities under E-
Verify can be found at http://www.uscis.gov/E-Verify. Employers can 
register for E-Verify on-line at http://www.uscis.gov/E-Verify. The 
site provides instructions for completing the MOU needed to officially 
register for the program. DHS believes that the E-Verify enrollment 
requirement would continue to provide an efficient and accurate manner 
of better ensuring that students participating in the STEM OPT 
extension are legally authorized to work. DHS requests comment on this 
proposal, including from students and employers that have had 
experience with this requirement under the 2008 IFR.

F. Previously Obtained STEM Degrees

    Commenters to the 2008 IFR inquired about eligibility for a STEM 
OPT extension in instances where a student earns a bachelor's degree in 
a STEM field but a master's degree in a non-STEM field, or two degrees 
at the same education level, one of which is in a STEM field. Since the 
2008 IFR, DHS has found that some F-1 students approved for OPT in 
STEM-related fields remain unable to extend their OPT, even if they 
have a prior STEM degree. This is because the regulations have 
effectively required that the OPT be directly related to the student's 
most recent major area of study and that the DSO certify that the 
student's degree that is the basis for his or her current period of OPT 
is a degree contained on the current STEM Designated Degree Program 
list. See 8 CFR 214.2(f)(10)(ii)(A) and (f)(11)(ii)(A). This limitation 
decreases the number of F-1 students with STEM degrees and STEM-related 
expertise available to participate in a STEM OPT extension.
    Stakeholders, including the academic community and the HSAAC, have 
requested the elimination of this restriction, such that a STEM OPT 
extension would be available to a student with a prior qualifying STEM 
degree, even if the student's most recent degree would not qualify. 
Stakeholders assert that such a modification would broaden the 
educational and training benefits of the STEM OPT extension to 
additional students with STEM backgrounds and would further benefit the 
U.S. economy by enhancing our nation's ability to compete and innovate 
in these fields.
    DHS agrees and is accordingly proposing to permit students to use a 
previously obtained and directly related STEM degree from an accredited 
school as a basis to apply for a STEM OPT extension. This previously 
obtained degree would make the STEM OPT extension available to students 
who have a prior background in STEM but who are currently engaging in 
OPT that has been authorized based on their study towards a different 
degree. Such an OPT extension, however, would be available only to such 
students who seek to develop and utilize STEM skills from their prior 
STEM degree during the extended OPT period.
    Under this proposal, students would not be able to use a previously 
obtained degree to obtain a STEM OPT extension immediately subsequent 
to another STEM OPT extension. In other words, the proposed changes 
would not provide students the ability to obtain two immediately 
consecutive STEM OPT extensions. Under the proposed rule, the second 
extension would be available to students only upon completion of a new 
initial post-completion OPT period.
    DHS proposes to permit DSOs at the student's school of most recent 
enrollment to certify prior STEM degrees, so long as the STEM degree 
was earned at a school accredited by an accrediting agency recognized 
by the Department of Education.\55\ The degree would also need to be on 
the STEM Designated Degree Program list at the time of the student's 
application. For a student who is relying on a previously obtained 
degree for the STEM OPT extension, his or her most recent degree must 
also be from an accredited institution and the student's practical 
training opportunity must be directly related to the previously 
obtained STEM degree. For a previously obtained degree to qualify as 
the basis for a STEM OPT extension, the degree must have been conferred 
within the 10 years preceding the student's application date. This 
requirement is intended to ensure the degree was conferred recently 
enough that it would be relevant to a present-day STEM OPT opportunity.
---------------------------------------------------------------------------

    \55\ A qualifying, previously obtained degree would provide 
eligibility for an extension so long as the educational institution 
that conferred the degree was accredited at the time the degree was 
granted.
---------------------------------------------------------------------------

    Finally, due to the difficulty in determining the equivalency of a 
degree obtained at a foreign institution, and because the purpose of 
OPT is to further one's course of study in the United States, STEM 
degrees from foreign schools will not be permitted to qualify under the 
proposed program.
    DHS requests comment on all aspects of this proposal.

G. Safeguarding U.S. Workers Through Measures Consistent With Labor 
Market Protections

    Many commenters to the 2008 IFR agreed with the Department's 
assessment that the 17-month STEM OPT extension would benefit both 
students and the U.S. economy. Commenters noted that the STEM labor 
shortage described in the 2008 IFR was well documented and that the 
United States faced stiff competition from other countries for high-
skilled STEM workers. One commenter stated that the IFR provided 
``small, but helpful steps'' towards addressing a critical need for

[[Page 63389]]

qualified, highly-trained and well-educated STEM workers. Another 
commenter stated that the rule partially addressed the severe shortage 
of U.S. workers in science, engineering, mathematics and technology. 
Commenters highlighted the importance of the STEM OPT extension not 
only for research universities that seek to attract high-quality 
international students, but also for employers seeking to fill empty 
positions. Some commenters characterized the availability of meaningful 
practical training as a critical aspect of the educational experience. 
As noted elsewhere in this preamble, many commenters also stated that 
the impact of the rule was too limited, and requested that eligibility 
for the extension be expanded to students in additional degree 
programs, as well as to students employed by employers that do not use 
E-Verify.
    A number of commenters, however, objected to the 17-month STEM OPT 
extension on the basis of potential negative impacts on U.S. workers in 
STEM fields. For instance, a commenter stated that demand for technical 
workers was very weak in engineering occupations and growing modestly 
in computing and mathematics occupations. The same commenter stated 
that, especially when combined with H-1B, L-1, and other skilled 
workers, the number of students taking advantage of the STEM OPT 
extension would distort the domestic labor market. Some commenters 
specifically stated that employers would prefer to hire F-1 students on 
STEM OPT extensions because these students would work for lower wages. 
Some commenters noted that some U.S. firms had previously advertised 
STEM positions as being available only to OPT students. Commenters 
requested that DHS consider written reports, testimony, and other 
sources describing the state of the U.S. STEM workforce. Commenters 
also questioned the veracity of studies and reports cited in the 
preamble to the 2008 IFR, and some questioned whether DHS had 
interpreted that information correctly in assessing the then-prevailing 
STEM labor market. Some commenters stated that the STEM OPT extension 
was contrary to the academic purpose of the F-1 statute. In general, 
commenters who made these and similar points requested that DHS 
eliminate the STEM OPT extension and the Cap Gap provision in their 
entirety.
    DHS's initial assessment, consistent with many of the public 
comments and following consultation with the U.S. Departments of 
Education and Labor, is that the direct benefit to the academic 
experience resulting from the STEM OPT extension is significant, and 
that on the whole, positive indirect effects on educational 
institutions and academic exchange support the availability of a STEM 
OPT extension at this time. Nevertheless, DHS recognizes the concerns 
expressed above and proposes to modify the terms and conditions for 
employer participation in the STEM OPT extension in order to protect 
U.S. workers from possible employer abuses of these programs.
    For instance, any employer wishing to hire a student participating 
in the STEM OPT extension would, as part of a newly required Mentoring 
and Training Plan, be required to sign a sworn attestation affirming 
that, among other things: (1) The employer has sufficient resources and 
personnel available and is prepared to provide appropriate mentoring 
and training in connection with the specified opportunity; (2) the 
employer will not terminate, lay off, or furlough a U.S. worker as a 
result of providing the STEM OPT to the student; and (3) the student's 
opportunity assists the student in attaining his or her training 
objectives. As with all affirmations contained in the Mentoring and 
Training Plan, the employer would attest that these commitments are 
true and correct to the best of the employer's knowledge, information 
and belief.
    Additionally, the proposed rule would require that the terms and 
conditions of an employer's STEM practical training opportunity--
including duties, hours and compensation \56\--be commensurate with 
those provided to the employer's similarly situated U.S. workers. Work 
duties must be designed to assist the student with continued learning 
and satisfy the existing ICE guidelines for work hours when 
participating in post-completion OPT, which are set at a minimum of 20 
hours per week, and would be so defined under this proposed rule.\57\ 
If the employer does not employ and has not recently employed more than 
two similarly situated U.S. workers, the employer would be required to 
ensure that the terms and conditions of a STEM practical training 
opportunity are commensurate with those for similarly situated U.S. 
workers in other employers of analogous size and industry and in the 
same geographic area of employment. ``Similarly situated U.S. workers'' 
would include U.S. workers performing similar duties and with similar 
educational backgrounds, employment experience, levels of 
responsibility, and skill sets as the STEM OPT student. The student's 
compensation would be reported on the Mentoring and Training Plan and 
the student would be responsible for reporting any adjustments. DHS 
requests public comment, especially from employers and labor 
organizations, on all aspects of this provision, including the types of 
business factors employers would use to evaluate whether their workers 
are similarly situated.
---------------------------------------------------------------------------

    \56\ DHS interprets the proposed compensation element to 
encompass wages and any other non-employee-benefit remuneration, 
including housing allotments, stipends, or similar provisions that 
are typically provided to employed students.
    \57\ See U.S. Immigration and Customs Enforcement, Policy 
Guidance 1004-03--Update to Optional Practical Training: Policy 
Guidance For SEVP and DSOs of SEVP-Certified Schools with F-1 
Students Eligible for or Pursuing Post-Completion OPT, 17 (April 23, 
2010), available at http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_042010.pdf (stating that a student, including 
those participating in the 17-month STEM OPT extension, must work at 
least 20 hours per week in a qualifying position to be considered 
employed).
---------------------------------------------------------------------------

    With regard to the requirement to provide commensurate 
compensation, DHS anticipates that employers would be able to show 
compliance through a variety of existing real-world practices. So long 
as the attestation is made in good faith and to the best of the 
employer's knowledge, information and belief, employers would be able 
to continue relying on many of the same resources they already use, 
such as local associations or national or local wage surveys, to set 
compensation for their U.S. workers. The rule would also permit 
employers to rely on other bases for establishing compensation levels. 
For example, employers hiring high-skilled STEM OPT students would be 
able to refer to prevailing wages provided by the Department of Labor's 
Office of Foreign Labor Certification for employees in the same 
occupation in the same area of employment.
    To help gauge compliance, employers would be required to provide 
DHS with student compensation information, which would better situate 
the agency to monitor whether STEM OPT students are being compensated 
fairly. This would both protect such students and ensure the practical 
training has no appreciable adverse consequences on the U.S. labor 
market. Additionally, the proposed rule would authorize a recurrent 
evaluation process that would allow ICE to monitor student progress 
during the OPT period. These evaluations would ensure continuous focus 
on the student's development throughout the student's training period, 
consistent with the Mentoring and Training Plan.
    With the added assurances that a student will be enhancing his or 
her course of study through training-based

[[Page 63390]]

learning experiences and mentoring, combined with the employer non-
displacement assurance, the requirement that STEM OPT students receive 
terms and conditions of employment (including compensation) 
commensurate with those of similarly situated U.S. workers, and other 
related requirements, DHS is confident that practical training during 
the STEM OPT extension will be carried out in a manner that safeguards 
U.S. worker interests.
    Some commenters to the 2008 IFR also expressed concern that the 
STEM OPT extension could be exploited by entities that hope to profit 
from the program but that may not have an actual STEM opportunity 
available for a student at the time of the student's application for 
the extension. To the extent that this comment refers to temporary 
placement agencies, DHS does not envision that such ``temp'' agencies 
will generally be able to provide eligible opportunities under the 
proposed STEM OPT extension, including by complying with the Mentoring 
and Training Plan process and requirements.
    Moreover, under this rule, DSOs would be prohibited from 
recommending a student for a STEM OPT extension if the employer has not 
provided the assurances required by this rule or is otherwise not in 
compliance with the relevant reporting, evaluation and other 
requirements described in this rule. Additionally, DHS has the ability 
to deny STEM OPT extensions with employers that the agency determines 
have failed to comply with the regulatory requirements, including the 
requirement to formerly execute the student's Mentoring and Training 
Plan and the requirement to comply with the assurances contained 
therein. ICE may investigate an employer's compliance with these 
assurances, based on a complaint or otherwise, consistent with the 
proposed employer site visit provision discussed in the following 
section. These safeguards will more effectively ensure that STEM OPT 
students achieve the objectives of their courses of study, while 
benefiting U.S. academic institutions and protecting U.S. workers. DHS 
requests comment on the feasibility and effectiveness of each of these 
provisions, including the obligations to confirm (1) that the terms and 
conditions of a STEM OPT student's employment are commensurate with 
those for similarly situated U.S. workers, and (2) that no U.S. worker 
will be terminated, laid off, or furloughed as a result of a STEM OPT 
opportunity.
    DHS recognizes that many university personnel submitted comments on 
the 2008 IFR highlighting the significant administrative burdens faced 
by DSOs in helping to coordinate participation in the F-1 program, 
including OPT. DHS acknowledges that the aforementioned proposals may 
impose additional resource burdens on DSOs, and may require 
universities to invest further in DSOs in order to take full advantage 
of the F-1 program.\58\ DHS requests comment from universities, DSOs, 
and other interested members of the public on how DHS can most 
effectively ensure an appropriate level of participation in this 
program by educational institutions. In light of the passage of time 
since implementation of the 2008 IFR, DHS particularly welcomes the 
submission of specific data related to the cost of implementation for 
that rulemaking.
---------------------------------------------------------------------------

    \58\ DHS notes, however, that it has implemented the Mentoring 
and Training Plan requirement in part to ensure that students and 
employers are fully aware of the requirements associated with this 
program.
---------------------------------------------------------------------------

 H. Oversight Through School Accreditation Requirements and Employer 
Site Visits

    With this rule, DHS proposes that in order for a student to be 
eligible for a STEM OPT extension, the student's STEM degree must be 
received from an educational institution accredited by an accrediting 
agency recognized by the Department of Education.\59\ The goal of 
accreditation is to ensure the quality of educational institutions and 
programs. Specifically, the accreditation process involves the periodic 
review of institutions and programs to determine whether they meet 
established standards in the profession and are achieving their stated 
educational objectives.\60\ Given these safeguards, DHS believes that 
requiring qualified degrees to be from accredited institutions would 
strengthen and better ensure the proper use of STEM OPT extensions.
---------------------------------------------------------------------------

    \59\ An accrediting agency is a private educational association 
of regional or national scope that develops evaluation criteria and 
conducts peer evaluations of educational institutions and academic 
programs. U.S. Department of Education Office of Postsecondary 
Education, ``The Database of Accredited Postsecondary Schools and 
Programs,'' available at http://ope.ed.gov/accreditation.
    \60\ U.S. Department of Education Office of Postsecondary 
Accreditation, ``FAQs about Accreditation'', available at http://ope.ed.gov/accreditation/FAQAccr.aspx.
---------------------------------------------------------------------------

    ICE's SEVP currently performs an examination and assessment of all 
schools applying for certification and re-certification to accept F-1 
students. 8 CFR 214.3(b). Although SEVP has procedures ``in lieu of 
accreditation'' to establish the validity and quality of schools in 
certain cases, accreditation is preferred and given significant weight 
in the overall certification assessment. Increasingly, schools are 
choosing to obtain accreditation. In the past five years, less than one 
percent of students participating in a STEM OPT extension had graduated 
from non-accredited schools.\61\ Thus, while accreditation may impose 
certain burdens, DHS does not expect the accreditation requirement to 
have broad impact on STEM OPT students.
---------------------------------------------------------------------------

    \61\ Based on data from 2010 to 2014, 0.56 percent of STEM OPT 
extensions were granted to students who graduated from non-
accredited schools.
---------------------------------------------------------------------------

    DHS also proposes to clarify that ICE, at its discretion, may 
conduct ``on-site reviews'' to ensure that employers meet program 
requirements, including that they are complying with assurances and 
that they possess the ability and resources to provide structured and 
guided work-based learning experiences according to the individualized 
Mentoring and Training Plans. The combination of requiring school 
accreditation and conducting discretionary ICE inspections of employers 
will reduce the potential for any fraudulent use of F-1 nonimmigrant 
status during the period of STEM OPT training.
    DHS requests comment from the public on all aspects of this 
proposal, including the feasibility and effectiveness of imposing a 
firm accreditation requirement as a condition of participation in the 
STEM OPT extension. DHS requests input specifically from non-accredited 
institutions that currently have or previously had F-1 students 
participating in a STEM OPT extension. DHS requests comment from such 
institutions and other members of the public on the availability and 
cost of accreditation, the practical significance of accreditation, and 
the potential that some student populations may lose eligibility for 
the STEM OPT extension.

 I. Additional Compliance Requirements

    This proposed rule includes additional requirements to track STEM 
OPT students, mitigate the potential for fraud, and ensure that 
students are truly furthering their course of study. As discussed in 
the 2008 IFR, DHS' ability to track nonimmigrant students in the United 
States relies on reporting by the students' DSOs, who obtain required 
information from the school's recordkeeping systems and through contact 
with the students. Students on OPT, however, are often away from the

[[Page 63391]]

academic environment, making it difficult for DSOs to ensure proper and 
prompt reporting on student status to ICE. While DHS regulations 
currently require DSOs to update SEVIS, the current reporting 
requirements depend entirely on the student's timely compliance. And 
DSOs are not currently required to review and verify information 
reported by students on a recurring basis. This combination of factors 
hinders systematic reporting and ICE's ability to track F-1 students 
during OPT.
    Accordingly, this proposed rule includes a number of compliance 
requirements established in the 2008 IFR for the current 17-month STEM 
OPT extension and adds additional measures that would supplement the 
goal of ensuring that the STEM OPT extension is directly related to a 
student's field of study. Requirements from the 2008 IFR that are 
proposed to be included in the STEM OPT extension under this rule 
include the following:
     The employer must report to the relevant DSO when an F-1 
student on a STEM OPT extension terminates or otherwise leaves his or 
her employment prior to the end of the authorized period of OPT and 
must do so no later than 48 hours after the student leaves employment. 
Employers must report this information to the DSO unless DHS announces, 
through a Federal Register notice, another means to report such 
information. The contact information for the DSO is on the student's 
Form I-20. DHS will only extend OPT for STEM students employed by 
employers that agree in the Mentoring and Training Plan to report this 
information.
     Students who are granted the STEM OPT extension are 
required to report to their DSO every six months, confirming the 
validity of their SEVIS information, including legal name, residential 
or mailing address, employer name and address, and/or loss of 
employment.
    These six-month requirements ensure adequate DHS oversight of the 
STEM OPT program by enhancing DHS's knowledge of the student's 
activities and whereabouts.
    The proposed rule also includes several other requirements to 
provide additional oversight over the STEM OPT extension, consistent 
with the proposed change to the duration of the extension. The proposed 
rule would require any employer providing a STEM practical training 
opportunity to have an employer identification number (EIN) used for 
tax purposes. Access to this EIN will help DHS better ensure program 
compliance. The proposed rule would also require students who are 
granted the STEM OPT extension to provide, at six-month intervals, an 
evaluation on their training progress and an update on the extent that 
their training goals are being met.
    The proposed rule would also limit the maximum period in which a 
student may be unemployed to 90 days during his or her initial period 
of post-completion OPT, and permit an additional 60 days, for an 
aggregate of 150 days, for students whose OPT includes a 24-month STEM 
OPT extension. The 90-day aggregate period during initial post-
completion OPT would remain at the level proposed in the 2008 IFR. Such 
a safeguard prevents OPT students from taking improper advantage of the 
program by, for instance, remaining in the United States without 
attempting to complement their learning through training. DHS proposes 
to revise the aggregate maximum allowed period of unemployment to 150 
days for an F-1 student having an approved STEM OPT extension 
consistent with the lengthened 24-month period for such an extension.
    In comments received on the 2008 IFR, many commenters opposed, or 
requested revising, the limits on unemployment during OPT. Some 
commenters suggested that unemployment limits pose significant burdens 
and that students should be able to maintain their status by simply 
seeking employment. Other commenters offered suggestions for revising 
the unemployment limits by allowing 120, 150, or 180 days of 
unemployment during initial post-completion OPT and a longer period 
during any STEM OPT extension. DHS believes that removing unemployment 
limits would be inconsistent with the agency's role of overseeing and 
ensuring OPT program integrity. DHS also believes that the proposed 150 
days for students granted a STEM OPT extension would provide additional 
flexibility when compared to the 120 days permitted under the current 
program's 17-month extension. With this change, DHS acknowledges the 
concerns of commenters who described the challenges that international 
students face in locating and obtaining training experiences in the 
United States. DHS welcomes comments on this issue.
    An additional newly proposed aspect of the STEM OPT extension is 
that a student seeking an extension would be required to properly file 
his or her Application for Employment Authorization with USCIS within 
60 days of the date the DSO enters the recommendation for the STEM OPT 
extension into the SEVIS record. Under the 2008 IFR, students were 
required to file their Application for Employment Authorization with 
USCIS within 30 days of the DSO recommendation. By expanding the 
application filing period, applicants would be afforded additional 
flexibility. Among other things, a longer application filing window 
would reduce: (1) The number of USCIS denials on Forms I-765 that 
result from expired Forms I-20, (2) the number of associated data 
corrections needed in SEVIS, and (3) the number of students who would 
otherwise need to ask DSOs for updated Forms I-20 to replace those that 
have expired.
    Additionally, ICE is working toward technology that would allow 
students to update their basic information in SEVIS without gaining 
access to restricted areas of the system where student access would be 
inappropriate. Once this technology is implemented, students would have 
increased ability to maintain their own records. This would also 
decrease the workload on DSOs, who would no longer be required to 
update student information while students are participating in 
practical training.

J. Cap-Gap Extension for F-1 Students With Timely Filed H-1B Petitions 
and Change of Status Requests

    As noted elsewhere in this preamble, the 2008 IFR included 
provisions, such as 8 CFR 214.2(f)(5)(vi) and 8 CFR 274a.12(b)(6)(v), 
that allowed for automatic extension of status and employment 
authorization for any F-1 student with a timely filed H-1B petition and 
request for change of status, if the student's petition has an 
employment start date of October 1 of the following fiscal year. The 
2008 IFR made these extensions available only until the beginning of 
the succeeding fiscal year. The extensions were intended to avoid 
situations where F-1 students who are affected by the H-1B cap are 
required to leave the country or terminate employment at the end of 
their authorized period of stay, even though they have an approved H-1B 
petition that would again provide status to the student in a few 
months' time.
    Many comments on the 2008 IFR were supportive of the ``Cap-Gap'' 
extension provided in that rule. Some commenters, however, objected to 
the Cap-Gap provision for reasons related to its potential impact on 
U.S. workers.
    The ``Cap-Gap'' provision is intended to avoid the inconvenience of 
temporary gaps in status, which would normally require individuals to 
leave the country and thereby suffer significant disruption to their 
careers and family. With respect to comments requesting elimination of 
the provision, DHS continues to believe that the Cap-Gap provision is a

[[Page 63392]]

commonsense administrative measure fully consistent with the underlying 
purpose of the practical training program. The so-called ``Cap-Gap'' is 
a result of the misalignment of the academic year with the start of the 
fiscal year. The Cap-Gap relief measure avoids inconvenience to some F-
1 students and U.S. employers through a straightforward administrative 
mechanism to bridge two periods of authorized legal status. DHS 
therefore proposes to include the 2008 IFR's Cap-Gap relief measure in 
this rule.

VI. Statutory and Regulatory Requirements

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

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

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, as well as distributive impacts and 
equity). Executive Order 13563 emphasizes the importance of quantifying 
both costs and benefits, of reducing costs, of harmonizing rules, and 
of promoting flexibility. This rule is a ``significant regulatory 
action,'' and has been determined to be an economically significant 
regulatory action, under section 3(f) of Executive Order 12866. 
Accordingly, the Office of Management and Budget has reviewed this 
regulation.
1. Summary of Proposed Rule
    This proposed rule, if made final, would permit eligible STEM 
graduates to receive a maximum STEM OPT extension of 24 months; permit 
eligible STEM graduates who have obtained a second qualifying STEM 
degree to obtain a second STEM OPT extension of 24 months; permit 
eligibility for the extension based on a STEM degree that is not the 
student's most recently obtained degree; limit eligibility for STEM OPT 
extensions to students that graduate from accredited institutions; 
require that students on STEM OPT extensions receive conditions of 
employment, including compensation, commensurate with similarly 
situated U.S. workers; require the disclosure of additional 
information, such as the student's compensation, to ICE; implement a 
formal process to update the STEM Designated Degree Program list; 
implement a formal mentoring requirement for students on STEM OPT 
extensions; and require employers of students applying for STEM OPT 
extensions to enroll in and use E-Verify on all new hires.
    The cost estimates set forth in this analysis represent the costs 
of compliance with, and implementation of, the proposed standards 
within the scope of the proposed rulemaking. The following quantified 
costs include time burdens for initial implementation of the student 
training and mentoring plan, six-month evaluations, reporting student 
information updates in SEVIS, eligibility verifications for new hires 
for employers of STEM OPT students using the E-Verify program, and 
filing Form I-675 applications. Additional quantified costs for 
students include fees for filing Form I-765, and some employers may 
incur implementation costs for the E-Verify program. Compared to the 
2008 IFR criteria for STEM OPT, qualitative costs for the proposed rule 
include reduced opportunities for students due to proposed restrictions 
on unaccredited school programs and not allowing volunteer work to be 
eligible for the extension. Additionally, compared to the 2008 IFR 
requirements for employers, there would be employer costs for paying 
STEM OPT students commensurate compensation, if the employer previously 
did not pay such compensation. DHS does not have data to support a cost 
estimate for this proposed requirement.
2. Summary of Affected Population
    The proposed rule would affect four categories of STEM OPT 
students: (1) Students who would have previously been eligible for 
participation in the 17-month STEM OPT extension under the 2008 IFR and 
would be, based on this NPRM, eligible for a 24-month extension; (2) 
students who would be eligible based upon a STEM degree earned prior to 
their most recent degree; (3) students who would be eligible based upon 
a second, and more advanced, qualifying STEM degree; and (4) students 
who would be eligible with a potential change to the current STEM-
Designated Degree Program List. Additionally, students currently on 17-
month extensions would be able to apply for the balance of the 24-month 
extension, depending on how much time remained in their current 17-
month extension and the effective date of a final regulation. DHS 
estimates that the population of current 17-month STEM OPT students who 
could apply for the expanded extension is 18,210. DHS provided an 
explanation on the methodology and data for the population estimates in 
the accompanying RIA published on the NPRM docket folder.

                                               Table 1--Summary of New STEM OPT Student Extension Request
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Transitional      New STEM OPT
                                                                population        extension       Increased                   Second     Total STEM OPT
                            Year                              from 17  month    students from      CIP list   Prior  STEM      STEM        population
                                                               to  24 month       accredited     eligibility     degrees      degree        impacted
                                                                 extension         schools
--------------------------------------------------------------------------------------------------------------------------------------------------------
1...........................................................          18,210             29,100        2,910          459          285            50,964
2...........................................................  ..............             33,465        3,347          528          316            37,656
3...........................................................  ..............             38,485        3,848          607          351            43,291
4...........................................................  ..............             44,257        4,426          698          390            49,771
5...........................................................  ..............             50,896        5,090          803          433            57,221
6...........................................................  ..............             56,495        5,649          891          480            63,515
7...........................................................  ..............             62,709        6,271          989          533            70,502
8...........................................................  ..............             69,607        6,961        1,098          592            78,257
9...........................................................  ..............             77,264        7,726        1,219          657            86,866
10..........................................................  ..............             85,763        8,576        1,353          729            96,421
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimates may not total due to rounding.


[[Page 63393]]

    The proposed rule would also affect schools and employers of the 
students seeking STEM OPT extensions. A description of the impacts to 
schools and employers is included in the following section on the 
estimated costs of the proposed rule. The Regulatory Flexibility 
Analysis also provides a detailed description of the estimated number 
of schools and employers affected by the proposed rule.
    Table 2 displays the estimated number of affected employers that 
could be impacted by the proposed E-verify enrollment and ongoing 
implementation requirements.

     Table 2--Summary of STEM OPT NPRM Employers E-Verify Population
------------------------------------------------------------------------
                                         Previously      Total STEM  OPT
                                       enrolled  STEM    employers  with
       New STEM OPT employers          OPT  employers        burden
                                         impacted by     resulting from
                                        proposed rule     proposed rule
------------------------------------------------------------------------
2,244...............................             2,834             5,078
2,670...............................             3,513             6,183
3,177...............................             4,181             7,358
3,781...............................             4,975             8,756
4,499...............................             5,920            10,419
5,354...............................             7,045            12,399
6,371...............................             8,383            14,754
7,582...............................             9,976            17,558
9,022...............................            11,872            20,894
10,737..............................            14,127            24,864
------------------------------------------------------------------------

3. Estimated Costs of Proposed Rule
    The cost estimates set forth in this analysis represent the costs 
of compliance with the proposed rule. This analysis concludes that 
compliance with the proposed requirements would be approximately $503.3 
million, discounted at 7 percent, over the period 2016-2025, or $71.7 
million per year when annualized at a 7 percent discount rate. The 
total cost, discounted at 7 percent, consists of $455.7 million for 
compliance with the STEM OPT program, and $47.6 million for compliance 
with E-Verify requirements. Table 3 below presents a 10-year summary of 
the estimated benefits and costs of the NPRM.

                                           Table 3--Total Cost of NPRM
                                                   [$millions]
----------------------------------------------------------------------------------------------------------------
                                                                                  E-Verify
                                                                STEM OPT      requirement  for
                           Year                                extensions         STEM OPT            Total
                                                                                  employer
----------------------------------------------------------------------------------------------------------------
1.........................................................             $53.3              $3.0             $56.3
2.........................................................              40.7               3.6              44.3
3.........................................................              46.8               4.3              51.1
4.........................................................              53.9               5.1              58.9
5.........................................................              61.9               6.0              68.0
6.........................................................              68.7               7.2              75.9
7.........................................................              76.3               8.6              84.9
8.........................................................              84.7              10.2              94.9
9.........................................................              94.0              12.1             106.1
10........................................................             104.3              14.4             118.8
                                                           -----------------------------------------------------
    Total.................................................             684.8              74.5             759.3
Total (7%)................................................             455.7              47.6             503.3
Total (3%)................................................             570.4              61.0             631.5
Annual (7%)...............................................              64.9               6.8              71.7
Annual (3%)...............................................              66.9               7.2              74.0
----------------------------------------------------------------------------------------------------------------

4. Estimated Benefits of the Rule
    Continuing the STEM OPT extension, making it available to 
additional students, and lengthening the current 17-month extension 
will enhance students' ability to achieve the objectives of their 
courses of study by gaining valuable knowledge and skills through on-
the-job training that is often unavailable in their home countries. The 
proposed changes will also benefit the U.S. educational system, U.S. 
employers, and the United States. The rule will benefit the U.S. 
educational system by helping ensure that the nation's colleges and 
universities remain globally competitive in attracting international 
students in STEM fields. U.S. employers will benefit from the increased 
ability to rely on the skills acquired by STEM OPT students while 
studying in the United States, as well as their knowledge of markets in 
their home countries. Moreover, the nation will benefit from the 
increased retention of such students in the United States, including 
through increased research, innovation, and other forms of productivity 
that enhance the nation's economic, scientific, and technological 
competitiveness.
    New safeguards for the STEM OPT program, including accreditation,

[[Page 63394]]

reporting, and tracking requirements, would decrease the opportunity 
for abuse and reduce any potential negative impact on U.S. workers. 
These improvements will increase program oversight and strengthen the 
requirements for program participation.
5. Alternatives
    In preparing the preferred regulatory approach proposed in the 
NPRM, DHS examined three options:
    1. Under the first option, DHS would take no regulatory action. The 
STEM OPT extension would no longer be available to F-1 STEM students 
after February 2016.
    2. The second, and proposed, option would strengthen the 2008 IFR 
by establishing a program requiring employers and students to prepare 
Mentoring and Training Plans and to present those plans to the relevant 
DSOs. The program would require that the proposed practical training be 
directly related to the student's course of study. Employers would be 
required to provide certain information, including: Learning objectives 
for the employment, how those objectives will be achieved and measured, 
and place of employment. DSOs would be required to review submissions 
for the STEM OPT extension in SEVIS. DHS may require the submission of 
the Mentoring and Training Plan to ICE and/or USCIS. As noted elsewhere 
in this preamble, a STEM OPT extension would be available to a student 
with a prior qualifying STEM degree, even if the student's most recent 
degree would not qualify. And a second STEM OPT extension would be 
available to students who earn an additional advanced STEM degree.
    3. The third option is similar to option two in all respects except 
for the duration of the STEM OPT extension, which would be limited to a 
one-time extension of 17 months, as in the 2008 IFR.
    DHS provides an analysis of these alternatives in the accompanying 
RIA provided in the NPRM docket folder.
    The following table summarizes the total monetized costs of each 
alternative regulatory option. Although the proposed rule option does 
have higher monetized costs than the third option, DHS has not 
quantified the benefits of the increased extension period under the 
proposed option because DHS does not have specific data to quantify the 
month-to-month economic benefits of the STEM OPT extension. DHS 
believes that the proposed option would have higher benefits to 
students and employers and increase attractiveness for U.S. academic 
programs.

                                Table 4--Regulatory Alternative Costs Comparison
----------------------------------------------------------------------------------------------------------------
                                                                           Regulatory alternatives
                           Year                            -----------------------------------------------------
                                                                   1               2                  3
                                                                 No action    Proposed rule     Maintain 17 Ext.
                                                                                alternative             STEM OPT
                                                                                                length & 12 Ext.
                                                                                               for second degree
----------------------------------------------------------------------------------------------------------------
1.........................................................            $0.0            $56.3                $35.7
2.........................................................             0.0             44.3                 41.1
3.........................................................             0.0             51.1                 47.5
4.........................................................             0.0             58.9                 54.4
5.........................................................             0.0             68.0                 62.9
6.........................................................             0.0             75.9                 69.9
7.........................................................             0.0             84.9                 78.2
8.........................................................             0.0             94.9                   87
9.........................................................             0.0            106.1                 97.9
10........................................................             0.0            118.8                109.7
                                                           -----------------------------------------------------
    Total.................................................             0.0            759.3                684.8
Total (7%)................................................             0.0            503.3                449.6
Total (3%)................................................             0.0            631.5                567.3
----------------------------------------------------------------------------------------------------------------

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to 
consider the potential impact of regulations on small entities during 
rulemaking. The term ``small entities'' comprises small business, not-
for-profit organizations that are independently owned and operated and 
are not dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000.
    DHS has published an IRFA, in the accompanying RIA, to aid the 
public in commenting on the small entity impact of the proposed 
requirements. The following discussion is a summary of the IRFA and a 
more detailed description of these findings is available in the RIA. 
DHS presents the number of estimated entities which would be impacted 
by the proposed rule, the number of small entities from a sample of the 
estimated impacted population, the estimated annual average cost impact 
per entity, and the estimated ratio of annual costs to revenue for 
sampled small entities.
    During the period from 2010 through 2014, a total of 1,109 approved 
and accredited \62\ schools recommended students for STEM OPT 
extensions.\63\ Of this population, DHS sampled 293 schools, to 
estimate the proportion of governmental jurisdictions, not-for-profit 
organizations, and for-profit firms for the total population. DHS then 
determined whether the sampled entities were small entities based on 
size standards set by the Small Business Administration. DHS assumed 
not-for-profit organizations and entities with insufficient data were 
small entities in the IRFA. Table 5 below summarizes the number of 
schools by category.
---------------------------------------------------------------------------

    \62\ Accredited by a Department of Education-approved 
accrediting agency.
    \63\ ICE SEVIS data.

[[Page 63395]]



                                Table 5--Estimated Number of Schools by Category
----------------------------------------------------------------------------------------------------------------
                                                       Small entities  (sample
               Parameter                  Quantity             segment)                      Comments
----------------------------------------------------------------------------------------------------------------
Population--Schools....................       1,109  N/A........................  Total number of accredited
                                                                                   schools endorsing STEM-OPT
                                                                                   Students between 2010-2014.
Sample:................................         293  N/A........................
    Non-matched Sample Segment.........           2  Yes........................  Entities not found in online
                                                                                   databases, assumed to be
                                                                                   small entities.
    Matched Sample Segment Non-Profit           138  Yes........................  Entities determined to be
     Schools.                                                                      private not-for-profit,
                                                                                   assumed to be small entities.
    Matched Sample Segment For-Profit             1  Yes........................  Private for-profit, matched in
     Schools.                                                                      online database with revenue
                                                                                   lower than SBA size standard,
                                                                                   assumed to be small entity.
    Matched Sample Segment For-Profit             3  No.........................  Entities determined to be
     Schools.                                                                      private for-profit, matched
                                                                                   in online databases with
                                                                                   revenue exceeding SBA size
                                                                                   standard, assumed not small
                                                                                   entities.
    Matched Sample Segment Government           149  No.........................  Entities among the 293 sampled
     Jurisdictions.                                                                confirmed as large
                                                                                   governmental jurisdictions.
----------------------------------------------------------------------------------------------------------------

    During the period from 2010 through 2014, a total of 26,260 
employers employed STEM OPT students.\64\ Of this population, DHS 
sampled 659 employers, to estimate the proportion of governmental 
jurisdictions, not-for-profit organizations, and for-profit firms for 
the total population. DHS then determined whether the sampled entities 
were small entities based on size standards set by the Small Business 
Administration. DHS also found that three of the sampled entities were 
temporary placement agencies (temporary agencies) and removed these 
three from the analysis, as DHS assumed most temporary agencies would 
not be able to comply with the requirements of the Mentoring and 
Training Plan. DHS again assumed not-for-profit organizations and 
entities with insufficient data were small entities in the IRFA. Table 
6 below summarizes the number of employers by category.
---------------------------------------------------------------------------

    \64\ ICE SEVIS data.

                               Table 6--Estimated Number of Employers by Category
----------------------------------------------------------------------------------------------------------------
                                                       Small entities  (sample
               Parameter                  Quantity             segment)                      Comments
----------------------------------------------------------------------------------------------------------------
Population--Employers..................      26,260  N/A........................  Total number of STEM-OPT
                                                                                   employers between 2010-2014.
Sample:................................         659  N/A........................  Estimated sample needed to
                                                                                   match 379 entities.
    Non-matched Sample Segment.........         279  Yes........................  Entities not found in online
                                                                                   databases, assumed to be
                                                                                   small entities.
Matched Sample Segment For-Profit......         214  Yes........................  For-profit entities matched in
                                                                                   online databases that did not
                                                                                   exceed SBA size standard.
    Matched Sample Segment Not-For-               7  Yes........................  Entities confirmed as private
     Profit.                                                                       not-for-profit.
    Matched Sample Segment For-Profit..         140  No.........................  For-profit entities matched in
                                                                                   online databases that did
                                                                                   exceed SBA size standard.
    Temporary Agencies.................           3  No.........................  Quantitative impact not
                                                                                   analyzed.
    Matched Sample Segment Government            16  No.........................  Entities that are large
     Jurisdictions.                                                                governmental jurisdictions.
----------------------------------------------------------------------------------------------------------------

Schools Costs
    Schools would incur costs for providing oversight and reporting 
STEM OPT students' information as well as reviewing required 
documentation. DSOs would be required to ensure the form has been 
completed and signed prior to making a recommendation in SEVIS. Schools 
would be required to ensure that SEVP has access to student evaluations 
(electronic or hard copy) for a period of at least three years 
following the completion of each STEM practical training opportunity. 
The 2008 IFR previously required six-month student validation check-ins 
with DSOs, and this proposed rule would maintain the validation 
requirement. While the DSO would be in communication with the student 
during a six-month validation check-in, DHS proposes to add an 
additional requirement that DSOs would also check to ensure the six-
month evaluation has been properly completed and retain a copy. The 
NPRM proposes to maintain the 2008 IFR requirements for periodic 
information reporting requirements on students, which would result in a 
burden for DSOs.
Unaccredited Schools
    Schools not accredited by a Department of Education-recognized 
accrediting agency may incur unquantified costs from the proposed 
prohibition on participation in STEM OPT extensions by students 
attending unaccredited schools. A few schools may choose to seek 
accreditation, or may potentially lose future foreign students and 
associated revenue. DHS requests comment from unaccredited institutions 
on this provision, including the potential effect of the requirement on 
your school and any data associated with the impact, such as the cost 
of accreditation or potential revenue loss.
    DHS summarizes the estimated annual first and second year costs for 
schools in the following table. DHS requests comments on burdens 
described below if additional data or

[[Page 63396]]

information is available. DHS acknowledges there may be additional 
regulatory costs \65\ to the following quantified costs, and requests 
comments specifically addressing concerns on costs for entities of all 
sizes, including small entities.
---------------------------------------------------------------------------

    \65\ Such costs could be related to train DSOs on how to comply 
with the requirements, program changes within the school, and time 
to generally review and comprehend the requirements of the 
regulation and make determinations on how to best implement the 
requirements with the least negative impact to their ongoing 
operations.

                          Table 7--Schools--Cost of Compliance per STEM OPT Opportunity
----------------------------------------------------------------------------------------------------------------
                                                                                         Cost in       Cost in
               Proposed provision                   Calculation of school cost per     year 1  per   year 2  per
                                                                student                  student       student
----------------------------------------------------------------------------------------------------------------
Initial Completion of Mentor & Train Plan.......  ((0.25 hrs + 0.083 hrs) x $39.33).        $13.09         $0.00
6 Month Evaluations & Validation Check-Ins \1\..  (0.333 hrs x 2 Evals x $39.33)....         26.20         26.20
Additional Implementation Cost \2\..............  0.1 x Mentor & Train Plan Initial           3.93          2.62
                                                   + Evals & Check-Ins Costs.
Student Info. Reporting Requirements............  0.167 hrs x 2 rpts x $39.33.......         13.14         13.14
                                                                                     ---------------------------
    Total.......................................     Total..........................         56.35         41.95
----------------------------------------------------------------------------------------------------------------
\1\ Estimated based on 12 month period costs per extension, for students on a 12-month second extension such as
  those with prior degrees and second degrees, only Year 1 costs were applied.
\2\ Mentoring and Training Plan initial costs are only in Year 1 per STEM OPT.

    DHS estimates the annual impact to the schools based on the school 
cost of compliance as a percentage of annual revenue. Second year costs 
account for new additional STEM OPT extension students. For not-for-
profit schools, DHS multiplied the tuition per full-time first-year 
student with total enrollment numbers to estimate their revenue.\66\ 
While tuition revenue may underestimate the actual school revenue, this 
is the best information available to DHS. It is the most significant 
source of income for most schools, and DHS believes it is a reasonable 
approach to measuring the impact of this proposed rule. Based on the 
results of the sampled small-entity schools with sufficient data, all 
had first year annual impacts less than 1 percent, with the average 
annual impact being 0.006 percent. All sampled small-entity schools 
with sufficient data had second year annual impacts of less than 1 
percent, with the average annual impact being 0.005 percent.
---------------------------------------------------------------------------

    \66\ U.S. Department of Education, Institute of Education 
Sciences, National Center for Education Statistics, ``Academic year 
prices for full-time, first-time undergraduate students'', (Total 
enrollment, including Undergraduate and Graduate) 2014-2015, 
available at http://nces.ed.gov/globallocator/.

                                    Table 8--Schools--Annual Impact in Year 1
----------------------------------------------------------------------------------------------------------------
                                                            Number of  small
                                                             entities  for-    Number of  non-  Percent of small
                   Revenue impact range                       profit  with    profit  entities    entity schools
                                                                  data            with data
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%.........................................                 4               137               100
1 < Impact <= 3...........................................                 0                 0                 0
3 < Impact <= 5...........................................                 0                 0                 0
5 < Impact <= 10..........................................                 0                 0                 0
Above 10..................................................                 0                 0                 0
                                                           -----------------------------------------------------
    Total.................................................                  141                              100
----------------------------------------------------------------------------------------------------------------


                                    Table 9--Schools--Annual Impact in Year 2
----------------------------------------------------------------------------------------------------------------
                                                            Number of  small
                                                             entities  for-    Number of  non-  Percent of small
                   Revenue impact range                       profit  with    profit  entities    entity schools
                                                                  data            with data
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%.........................................                 4               137               100
1 < Impact <= 3...........................................                 0                 0                 0
3 < Impact <= 5...........................................                 0                 0                 0
5 < Impact <= 10..........................................                 0                 0                 0
Above 10..................................................                 0                 0                 0
                                                           -----------------------------------------------------
    Total.................................................                  141                              100
----------------------------------------------------------------------------------------------------------------

Employer Costs
    Employers would be required to provide information for certain 
fields, review the completed form, and attest to the certifications on 
the form. The proposed rule also ensures that students would be unable 
to complete their STEM OPT extensions as volunteers by requiring 
commensurate compensation, and additionally requires that students work 
at least 20 hours per week while on their STEM OPT extension. DHS

[[Page 63397]]

does not have data on the number of STEM OPT students who may not 
currently receive compensation. In addition, DHS does not have data on 
the number of STEM OPT students who do not currently receive wages or 
other qualifying compensation that would be considered commensurate 
under the proposed rule. To the extent that employers are not currently 
compensating STEM OPT participants in accordance with the proposed 
rule, this proposal would create additional costs to these employers. 
However, DHS notes that employer participation in the STEM OPT program 
is entirely voluntary, and each employer would determine if the 
benefits of hiring the STEM OPT student exceed the costs of doing so 
when considering all of the costs and burdens of the proposed rule, 
including the requirement to pay commensurate compensation. DHS 
requests comments from employers on the effect of these proposed 
requirements. In the quantified costs, DHS does account for the 
possible additional burden of reviewing the employment terms of 
similarly situated U.S. workers in order to compare the terms and 
conditions of their employment to those of the STEM OPT student's 
practical training opportunity.
    The proposed rule indicates that ICE, at its discretion, may 
conduct a site visit of an employer. The employer on-site review is 
intended to ensure that each employer meets program requirements, 
including that they are complying with assurances and that they possess 
the ability and resources to provide structured and guided work-based 
learning experiences outlined in students' Mentoring and Training 
Plans. Site visits would not be a requirement for each STEM OPT student 
employer or a regularly scheduled occurrence, but would rather be 
performed at the discretion of DHS either randomly or when DHS 
determines that such an action is needed. The length and depth of such 
a visit would be determined on a case-by-case basis. For law 
enforcement reasons, DHS does not include an estimate of the basis for 
initiating a site visit and is unable to estimate of the number of site 
visits that may be conducted, and thus is unable to provide a total 
annual estimated cost for such potential occurrences. However, based on 
on-site-reviews of schools, DHS estimates that an employer site visit 
may include review of records and questions for the supervisor, and 
would take two hours per employer. Therefore, DHS estimates that if an 
employer were to receive such an on-site review, it may cost the 
employer approximately $394.80 (5 hours x $78.96).
    DHS summarizes the estimated annual first and second year costs for 
potential employers of STEM OPT students in the following table. DHS 
requests comments on burdens described below if additional data or 
information is available. DHS acknowledges there may be additional 
regulatory compliance implementation costs \67\ to the following 
quantified costs, and requests comments specifically addressing 
concerns on implementation costs for entities of all sizes, including 
small entities.
---------------------------------------------------------------------------

    \67\ Such costs could be related to train supervisors on how to 
comply with the requirements, program changes within the school, and 
time to generally review and comprehend the requirements of the 
regulation and make determinations on how to best implement the 
requirements with the least negative impact to their ongoing 
operations.

                                Table 10--Individual Employer--Cost of Compliance
----------------------------------------------------------------------------------------------------------------
                                                                                         Cost in       Cost in
               Proposed provision                        Calculation of costs            Year 1        Year 2
----------------------------------------------------------------------------------------------------------------
Initial Completion of Mentor & Train Plan.......  (0.5 hrs x $80.12) + (0.5 hrs x          $123.47         $0.00
                                                   $78.96)+ (1 hrs x $43.93).
6 Month Evaluations & Validation Check-Ins \1\..  (0.25 hrs x 2 Evals x 78.96)......         39.48         39.48
Additional Implementation Cost \2\..............  0.1 x Mentor & Train Plan Initial          11.90          3.95
                                                   + Evals & Check-Ins Costs.
                                                                                     ---------------------------
Employer STEM OPT Costs per Student =...........     Total..........................        179.25         43.43
----------------------------------------------------------------------------------------------------------------
Cost per E-Verify per New Hire Case =...........  (0.16 hrs x 43.93)................          7.03          7.03
E-Verify Enrollment.............................  (80.12 x 2.26) + 100..............        281.07          0.00
E-Verify Annual Training & Maintenance Costs....  (1 hrs x 43.93) + 398)............        441.93        441.93
Compliance Site Visits..........................  (5 hrs x 78.96)...................          0.00        394.80
                                                                                     ---------------------------
E-Verify and Site Visit Employer Costs =........     Total..........................        723.00        836.73
----------------------------------------------------------------------------------------------------------------

    DHS estimates the annual impact to employers based on the employer 
cost of compliance as a percentage of annual revenue. Second year costs 
include initial submission of Mentoring and Training Plans and 
evaluations for new STEM OPT students who would be hired in the second 
year. For not-for-profit school employers without revenue data, DHS 
multiplied the tuition per full-time first-year student with total 
enrollment numbers to estimate their revenue. Based on the results of 
the sampled small entities with sufficient data, almost all had first 
and second year annual impacts less than 1 percent, with the first-year 
average annual revenue impact being 0.13 percent and second-year annual 
revenue impact being 0.15 percent. Additionally, the cost impact per 
employer included a compliance site visit in year two; therefore, costs 
could be less for employers that do not receive a site visit. Employers 
of STEM OPT students would determine if the benefits of hiring such 
students exceed program requirements costs. To the extent that the 
benefits do not exceed costs, employers may choose not to hire STEM OPT 
students.

[[Page 63398]]



                                  Table 11--Employers--Annual Impact in Year 1
----------------------------------------------------------------------------------------------------------------
                                                            Number of  small
                                                             entities  for-    Number of  non-     Percent of
                   Revenue impact range                       profit  with    profit  entities   small entities
                                                                  data            with data         employers
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%.........................................               211                 7               99%
1 < Impact <= 3...........................................                 2                 0                 1
3 < Impact <= 5...........................................                 0                 0                 0
5 < Impact <= 10..........................................                 0                 0                 0
Above 10..................................................                 0                 0                 0
                                                           -----------------------------------------------------
    Total.................................................                  220                            100.0
----------------------------------------------------------------------------------------------------------------


                                  Table 12--Employers--Annual Impact in Year 2
----------------------------------------------------------------------------------------------------------------
                                                            Number of  small
                                                             entities  for-    Number of  non-     Percent of
                   Revenue impact range                       profit  with    profit  entities   small entities
                                                                  data            with data         employers
----------------------------------------------------------------------------------------------------------------
0% < Impact <= 1%.........................................               210                 7               99%
1 < Impact <= 3...........................................                 3                 0                 1
3 < Impact <= 5...........................................                 0                 0                 0
5 < Impact <= 10..........................................                 0                 0                 0
Above 10..................................................                 0                 0                 0
                                                           -----------------------------------------------------
    Total.................................................                  220                            100.0
----------------------------------------------------------------------------------------------------------------

Current Employers That Do Not Continue To Participate
    Due to additional employer requirements that must be met in order 
to receive the benefit of training STEM OPT extension opportunity, it 
may be possible that some employers (such as temporary employment 
agencies) would no longer participate in STEM OPT extensions. DHS does 
not present the quantitative burden or cost associated with this 
possible impact on employers due to lack of available information on 
employers that would fall under this category and the associated 
economic impacts. DHS will consider data or information provided by 
commenters to assess such an impact upon employers.
    In particular, DHS requests information and data that would assist 
with better understanding the impact of this rule on small entities. 
DHS also seeks any alternatives that will accomplish the objectives of 
this rulemaking and minimize the proposed rule's economic impact on 
small entities. After receiving comments on small entity concerns, data 
and information on impacts, and suggestions that could reduce negative 
or cost impacts to small entities, DHS would consider possible 
alternatives in a final rule. After publication of a final rule, DHS 
would engage in outreach and provide small entity stakeholders 
assistance or clarification regarding how to implement the new proposed 
requirements. At this time, DHS is unable to certify that the proposed 
rule will not have a significant economic impact on a substantial 
number of small entities.

 C. Small Business Regulatory Enforcement Fairness Act of 1996

    Pursuant to section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, Public Law 104-121, we want to assist 
small entities in understanding this proposed rule so that they can 
better evaluate its effects and participate in the rulemaking. If the 
proposed rule would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult ICE using the 
contact information provided in the FOR FURTHER INFORMATION section 
above.

 D. Unfunded Mandates Reform Act

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

 E. The Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules 
to be submitted to Congress before taking effect. If implemented as 
proposed, we may submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of the Final Rule prior 
to its effective date, as required by 5 U.S.C. 801(a)(1).

F. Collection of Information

    Federal agencies are required to submit to OMB, for review and 
approval, any reporting or recordkeeping requirements inherent in a 
rule under the Paperwork Reduction Act of 1995, as amended (PRA), 
Public Law 104-13, 109 Stat. 163 (1995), 44 U.S.C. 3501-3520. Under the 
PRA, an agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    DHS has submitted the following information collection request to 
the Office of Management and Budget (OMB) for review and clearance in 
accordance with the review procedures of the PRA. The proposed 
information collection requirements are outlined in this proposed rule 
to obtain comments from the public and affected entities. The proposed 
rule would maintain the 2008 IFR revisions to previously approved 
information collections. The 2008 IFR impacted information collections 
for Form I-765, Application for Employment Authorization (OMB Control 
No. 1615-0040); Student and Exchange Visitor Information System (SEVIS) 
and Form I-20, Certificate of

[[Page 63399]]

Eligibility for Nonimmigrant Student Status (OMB Control No. 1653-
0038); and the E-Verify Program (OMB Control No. 1615-0092). These four 
approved information collections corresponding to the 2008 IFR have 
included the number of respondents, responses and burden hours 
resulting from the 2008 IFR requirements, which are also burdens DHS is 
proposing to maintain. Therefore DHS is not revising the burden 
estimates for these four information collections. Additional responses 
tied to new changes to STEM OPT eligibility will minimally increase the 
number of responses and burden for Form I-765 and E-Verify information 
collections, as the two collections cover a significantly broader 
population of respondents and responses than those impacted by the 
proposed rule and already account for growth in the number of responses 
in their respective published information collection notices burden 
estimates.
    As part of this NPRM, DHS is creating a new information collection 
instrument for the Mentoring and Training Plan. This information 
collection is necessary to enable reporting of and attesting to 
specified information relating to STEM OPT extensions, to be executed 
by STEM OPT students and their employers. Such reporting would include 
goals and objectives, progress, hours, and compensation. Assurances 
would ensure proper training opportunities for students and safeguard 
interests of U.S. workers in related fields.
    Additionally, DHS will require some minor changes to the 
Application for Employment Authorization, Form I-765, instructions to 
reflect proposed changes to the F-1 regulations allowing for: (a) a 
longer period of F-1 OPT STEM extension, and (b) an applicant to file 
an Application for Employment Authorization, Form I-765, with USCIS 
within 60 days (rather than 30 days) from the date the DSO endorses 
his/her F-1 OPT STEM extension. Accordingly, USCIS will be submitting 
an OMB 83-C, Correction Worksheet, to OMB for review and approval of 
the minor edits to the Application for Employment Authorization, Form 
I-765, instructions during the final rule stage. USCIS seeks comments 
on whether Form I-765 should be modified as a direct result of the 
changes in the proposed rule. See the ADDRESSES section above for 
instructions on how to submit comments to DHS and OMB on the 
information collection provisions of this rulemaking. Written comments 
and suggestions from the public and affected agencies concerning the 
collection of information are encouraged. Your comments on the 
information collection-related aspects of this rule should address one 
or more of the following four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected;
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology (e.g., permitting electronic 
submission of responses). In particular, DHS requests comments on the 
recordkeeping cost burden imposed by this rule and will use the 
information gained through such comments to assist in calculating the 
cost burden.
Overview of This Information Collection--Mentoring and Training Plan
    (1) Type of Information Collection: New Collection.
    (2) Title of the Form/Collection: STEM OPT Extension Mentoring and 
Training Plan.
    (3) Agency form number, if any, and the applicable component of DHS 
sponsoring the collection: Immigration and Customs Enforcement Form I-
910;
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract:
     Primary: State governments, local governments, and 
businesses, or other for-profit and not-for-profit organizations.
     Other: None.
     Abstract: DHS is publishing a notice of proposed 
rulemaking (NPRM) that would make certain changes to the STEM OPT 
extension first introduced by the 2008 IFR. The NPRM would lengthen the 
duration of the STEM OPT extension to 24 months; require a Mentoring 
and Training Plan executed by STEM OPT students and their employers; 
and require that the plan include assurances to safeguard students and 
the interests of U.S. workers in related fields; require that the plan 
include objective-tracking and reporting requirements. The proposed 
rule would require students and employers (through an appropriate 
signatory official) to report on the Mentoring and Training Plan 
certain specified information relating to STEM OPT extensions. For 
instance, the Mentoring and Training Plan would explain how the 
employment will provide a work-based learning opportunity for the 
student by stating the specific goals of the practical training and 
describe how those goals will be achieved; detail the knowledge, 
skills, or techniques to be imparted to the student; explain how the 
mentorship and training is directly related to the student's qualifying 
STEM degree; and describe the methods of performance evaluation and the 
frequency of supervision. The Mentoring and Training Plan would also 
include a number of employer attestations intended to ensure the 
academic benefit of the practical training experience, protect STEM OPT 
students, and protect against appreciable adverse consequences on U.S. 
workers. The proposed rule would also require schools to collect and 
retain this information for a period of three years following the 
completion of each STEM practical training opportunity.
    (5) An estimate of the total annual average number of respondents, 
annual average number of responses, and the total amount of time 
estimated for respondents in an average year to collect, provide 
information, and keep the required records is:
     43,970 STEM OPT student respondents; 1,109 accredited 
schools endorsing STEM OPT students; and 16,891 employers of STEM OPT 
students.
     43,970 average responses annually at 4.00 hours per 
initial Mentoring and Training Plan response.
     87,941 average responses annually at 1.75 hours per 6-
month evaluation response by STEM OPT students.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: 330,174 hours.
    The recordkeeping requirements set forth by this rule are new 
requirements that will require a new OMB Control Number. DHS is seeking 
comment on these new requirements as part of this NPRM.

 G. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this proposed rule under that

[[Page 63400]]

Order and have determined that it does not have implications for 
federalism.

 H. Civil Justice Reform

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

I. Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is a ``significant 
regulatory action'' under Executive Order 12866 but is not likely to 
have a significant adverse effect of the supply, distribution, or use 
of energy.

J. Environment

    The U.S. Department of Homeland Security Management Directive (MD) 
023-01 Rev. 01 establishes procedures that DHS and its Components use 
to comply with the National Environmental Policy Act of 1969 (NEPA), 42 
U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ) 
regulations for implementing NEPA, 40 CFR parts 1500 through 1508. CEQ 
regulations allow federal agencies to establish categories of actions, 
which do not individually or cumulatively have a significant effect on 
the human environment and, therefore, do not require an Environmental 
Assessment or Environmental Impact Statement. 40 CFR 1508.4. The MD 
023-01 Rev. 01 lists the Categorical Exclusions that DHS has found to 
have no such effect. MD 023-01 Rev. 01 Appendix A Table 1.
    For an action to be categorically excluded, MD 023-01 Rev. 01 
requires the action to satisfy each of the following three conditions:
    (1) The entire action clearly fits within one or more of the 
Categorical Exclusions.
    (2) The action is not a piece of a larger action.
    (3) No extraordinary circumstances exist that create the potential 
for a significant environmental effect. MD 023-01 Rev. 01 section 
V.B(1)-(3).
    Where it may be unclear whether the action meets these conditions, 
MD 023-01 Rev. 01 requires the administrative record to reflect 
consideration of these conditions. MD 023-01 Rev. 01 section V.B.
    DHS has analyzed this proposed rule under MD 023-01 Rev. 01. DHS 
has made a preliminary determination that this action is one of a 
category of actions that do not individually or cumulatively have a 
significant effect on the human environment. This proposed rule clearly 
fits within the Categorical Exclusion found in MD 023-01 Rev. 01, 
Appendix A, Table 1, number A3(a): ``Promulgation of rules . . . of a 
strictly administrative or procedural nature;'' and A3(d): 
``Promulgation of rules . . . that interpret or amend an existing 
regulation without changing its environmental effect.'' This proposed 
rule is not part of a larger action. This proposed rule presents no 
extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, this proposed rule is categorically 
excluded from further NEPA review.

K. Indian Tribal Governments

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

L. Taking of Private Property

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

M. Protection of Children

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

N. Technical Standards

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

List of Subjects

8 CFR Part 214

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

8 CFR Part 274a

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

The Proposed Amendments

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

Subchapter B--Immigration Regulations

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 continues to read as follows:

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

0
2. Amend Sec.  214.2 by:
0
a. Republishing paragraph (f)(5)(vi); and
0
b. Revising paragraphs (f)(10)(ii)(A)(3), (f)(10)(ii)(C), (D), and (E), 
and (f)(11) and (12).
    The revisions read as follows:


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

* * * * *
    (f) * * *
    (5) * * *
    (vi) Extension of duration of status and grant of employment 
authorization. (A) The duration of status, and any employment 
authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), of an F-1 
student who is the beneficiary of an H-1B petition and request for 
change of status shall be automatically

[[Page 63401]]

extended until October 1 of the fiscal year for which such H-1B visa is 
being requested where such petition:
    (1) Has been timely filed; and
    (2) States that the employment start date for the F-1 student is 
October 1 of the following fiscal year.
    (B) The automatic extension of an F-1 student's duration of status 
and employment authorization under paragraph (f)(5)(vi)(A) of this 
section shall immediately terminate upon the rejection, denial, or 
revocation of the H-1B petition filed on such F-1 student's behalf.
    (C) In order to obtain the automatic extension of stay and 
employment authorization under paragraph (f)(5)(vi)(A) of this section, 
the F-1 student, according to 8 CFR part 248, must not have violated 
the terms or conditions of his or her nonimmigrant status.
    (D) An automatic extension of an F-1 student's duration of status 
under paragraph (f)(5)(vi)(A) of this section also applies to the 
duration of status of any F-2 dependent aliens.
* * * * *
    (10) * * *
    (ii) * * *
    (A) * * *
    (3) After completion of the course of study, or, for a student in a 
bachelor's, master's, or doctoral degree program, after completion of 
all course requirements for the degree (excluding thesis or 
equivalent). Continued enrollment, for the school's administrative 
purposes, after all requirements for the degree have been met does not 
preclude eligibility for optional practical training. A student must 
complete all practical training within a 14-month period following the 
completion of study, except that a 24-month extension pursuant to 
paragraph (f)(10)(ii)(C) of this section does not need to be completed 
within such 14-month period.
* * * * *
    (C) 24-month extension of post-completion OPT for a science, 
technology, engineering, or mathematics (STEM) degree. Consistent with 
paragraph (f)(11)(i)(C) of this section, a qualified student may apply 
for an extension of OPT while in a valid period of post-completion OPT 
authorized under 8 CFR 274a.12(c)(3)(i)(B). An extension will be for 24 
months for the first qualifying degree completed by the student, 
including any previously obtained degree that qualifies. If a student 
completes another qualifying degree at a higher degree level than the 
first, a second extension will be for an additional 24 months. In no 
event may a student be authorized for more than two lifetime STEM OPT 
extensions. Any subsequent application for an additional 24-month OPT 
extension under this paragraph (f)(10)(ii)(C) must be based on a degree 
at a higher degree level than the degree that was the basis for the 
student's first 24-month OPT extension. In order to qualify for an 
extension of post-completion OPT based upon a STEM degree, all of the 
following requirements must be met.
    (1) Accreditation. The degree that is the basis for the 24-month 
OPT extension is from an educational institution accredited by an 
accrediting agency recognized by the Department of Education.
    (2) DHS-approved degree. The degree that is the basis for the 24-
month OPT extension is a bachelor's, master's, or doctoral degree in 
one of the degree programs determined by the Secretary, or his or her 
designee, to qualify within a science, technology, engineering, or 
mathematics field.
    (i) The term ``science, technology, engineering or mathematics 
field'' means a field included in the Department of Education's 
Classification of Instructional Programs taxonomy within the summary 
groups containing mathematics, natural sciences (including physical 
sciences and biological/agricultural sciences), engineering/engineering 
technologies, and computer/information sciences, and related fields.
    (ii) The Secretary, or his or her designee, will maintain the STEM 
Designated Degree Program List, which will be a complete list of 
qualifying degree program categories, published on the Student and 
Exchange Visitor Program Web site at http://www.ice.gov/sevis. Changes 
that are made to the Designated Degree Program list may also be 
published in a notice in the Federal Register. All program categories 
included on the list must be consistent with the definition set forth 
in paragraph (f)(10)(ii)(C)(2)(i) of this section.
    (iii) At the time the DSO recommends an OPT extension under 
paragraph (f)(10)(ii)(C) of this section in SEVIS, the degree that is 
the basis for the application for a 24-month OPT extension must be 
contained within a category on the STEM Designated Degree Program List.
    (3) Previously obtained STEM degree(s). The degree that is the 
basis for the 24-month OPT extension under paragraph (f)(10)(ii)(C) of 
this section may be, but is not required to be, the degree that is the 
basis for the post-completion OPT period authorized under 8 CFR 
274a.12(c)(3)(i)(B). In either case, the degree that is the basis of 
the 24-month OPT extension must have been conferred by an accredited 
U.S. educational institution and must be contained within a category on 
the current STEM Designated Degree Program List at the time of the DSO 
recommendation. If an application for a 24-month OPT extension under 
paragraph (f)(10)(ii)(C) of this section is based upon a degree 
obtained previous to the degree that provided the basis for the period 
of post-completion OPT authorized under 8 CFR 274a.12(c)(3)(i)(B), that 
previously obtained degree must have been conferred within the 10 years 
preceding the student's application date, and the student's most recent 
degree must also be from an institution accredited by an accrediting 
agency recognized by the Department of Education.
    (4) Eligible practical training opportunity. The STEM practical 
training opportunity that is the basis for the 24-month OPT extension 
under paragraph (f)(10)(ii)(C) of this section must be directly related 
to the degree that qualifies the student for such extension, which may 
be the previously obtained degree described in paragraph 
(f)(10)(ii)(C)(3) of this section.
    (5) Employer qualification. The student's employer is enrolled in 
the E-Verify program, as evidenced by either a valid E-Verify company 
identification number or, if the employer is using an employer agent to 
create its E-Verify cases, a valid E-Verify client company 
identification number, and the employer is a participant in good 
standing in the E-Verify program, as determined by USCIS. An employer 
must also have an employer identification number (EIN) used for tax 
purposes.
    (6) Employer reporting. A student may not be authorized for 
employment with an employer pursuant to paragraph (f)(10)(ii)(C)(2) of 
this section unless the employer agrees, by signing the Mentoring and 
Training Plan, to report the termination or departure of an OPT student 
to the DSO at the student's school, if the termination or departure is 
prior to the end of the authorized period of OPT. Such reporting must 
be made within 48 hours of the termination or departure. An employer 
shall consider a student to have departed when the employer knows the 
student has left the practical training opportunity, or if the student 
has not reported for his or her practical training for a period of five 
consecutive business days without the consent of the employer, 
whichever occurs earlier.
    (7) Mentoring and Training Plan (Form I-910). (i) A student must 
fully

[[Page 63402]]

complete an individualized Mentoring and Training Plan and obtain 
requisite signatures from his or her employer or an appropriate 
individual in the employer's organization on the Mentoring and Training 
Plan, or any successor form, consistent with form instructions, before 
the DSO may recommend a 24-month OPT extension under paragraph 
(f)(10)(ii)(C)(2) of this section in SEVIS. A student must submit the 
Mentoring and Training Plan, which includes a certification of 
adherence to the plan completed by an appropriate individual in the 
employer's organization who has signatory authority for the employer, 
to the student's DSO, prior to the new DSO recommendation. A student 
must present his or her signed and completed Mentoring and Training 
Plan to a DSO at the educational institution of his or her most recent 
enrollment. A student, while in F-1 nonimmigrant status, may also be 
required to submit the Mentoring and Training Plan to ICE and/or USCIS 
upon request or in accordance with form instructions.
    (ii) The Mentoring and Training Plan must explain how the 
employment will provide a work-based learning opportunity for the 
student by stating the specific goals of the STEM practical training 
opportunity and describing how those goals will be achieved; detailing 
the knowledge, skills, or techniques to be imparted to the student; 
explaining how the mentorship and training is directly related to the 
student's qualifying STEM degree; and describing the methods of 
performance evaluation and the frequency of supervision.
    (iii) If a student initiates a new practical training opportunity 
with a new employer during his or her 24-month OPT extension, the 
student must submit, within 10 days of beginning the new practical 
training opportunity, a new Mentoring and Training Plan to the 
student's DSO, and subsequently obtain a new DSO recommendation.
    (8) Duties, hours, and compensation for training. The terms and 
conditions of a STEM practical training opportunity during the period 
of the 24-month OPT extension, including duties, hours, and 
compensation, must be commensurate with terms and conditions applicable 
to the employer's similarly situated U.S. workers in the area of 
employment, except in no event may the student engage in compensated 
practical training for less than 20 hours per week. If the employer 
does not employ and has not recently employed more than two similarly 
situated U.S. workers in the area of employment, the employer 
nevertheless remains obligated to attest that the terms and conditions 
of a STEM practical training opportunity are commensurate with the 
terms and conditions of employment for other similarly situated U.S. 
workers in the area of employment. ``Similarly situated U.S. workers'' 
includes U.S. workers performing similar duties subject to similar 
supervision and with similar educational backgrounds, industry 
expertise, employment experience, levels of responsibility, and skill 
sets as the STEM OPT student. The duties, hours, and compensation of 
STEM OPT students are ``commensurate'' with those offered to U.S. 
workers employed by the employer in the same area of employment when 
the employer can show that the duties, hours, and compensation are 
consistent with the range of such terms and conditions the employer has 
offered or would offer to similarly situated U.S. employees. The 
student must disclose his or her compensation, including any 
adjustments, as agreed to with the employer, on the Mentoring and 
Training Plan.
    (9) Evaluation requirements. A student may not be authorized for 
employment with an employer pursuant to paragraph (f)(10)(ii)(C)(2) of 
this section unless the employer develops procedures for evaluating the 
student, which shall include documentation of the student's progress 
toward the training goals described in the Mentoring and Training Plan. 
All required evaluations must be completed prior to the conclusion of a 
STEM practical training opportunity, and the student and his or her 
immediate supervisor must sign the evaluations. At a minimum, all STEM 
practical training opportunities require a concluding evaluation and a 
recurrent evaluation at every six-month interval of each OPT extension 
period under paragraph (f)(10)(ii)(C)(2) of this section. The 
educational institution whose DSO is responsible for duties associated 
with the student's latest OPT extension under paragraph 
(f)(10)(ii)(C)(2) of this section is responsible for ensuring the 
Student and Exchange Visitor Program has access to each individualized 
Mentoring and Training Plan and associated student evaluations 
(electronic or hard copy), including through SEVIS if technologically 
available, beginning within 30 days after the document is submitted to 
the DSO and continuing for a period of three years following the 
completion of each STEM practical training opportunity.
    (10) Additional STEM opportunity obligations. A student may only 
participate in a STEM practical training opportunity in which the 
employer attests, including by signing the Mentoring and Training Plan, 
that:
    (i) The employer has sufficient resources and personnel available 
and is prepared to provide appropriate mentoring and training in 
connection with the specified opportunity;
    (ii) The employer will not terminate, lay off, or furlough any 
full- or part-time, temporary or permanent U.S. worker as a result of 
the practical training opportunity; and
    (iii) The student's opportunity assists the student in reaching his 
or her training goals.
    (11) Site visits. DHS, at its discretion, may conduct a site visit 
of any employer. The purpose of the site visit is for DHS to ensure 
that each employer possesses and maintains the ability and resources to 
provide structured and guided work-based learning experiences 
consistent with any Mentoring and Training Plan completed and signed by 
the employer.
    (D) Duration of status while on post-completion OPT. For a student 
with approved post-completion OPT, the duration of status is defined as 
the period beginning when the student's application for OPT was 
properly filed and pending approval, including the authorized period of 
post-completion OPT, and ending 60 days after the OPT employment 
authorization expires.
    (E) Periods of unemployment during post-completion OPT. During 
post-completion OPT, F-1 status is dependent upon employment. Students 
may not accrue an aggregate of more than 90 days of unemployment during 
any post-completion OPT described in 8 CFR 274a.12(c)(3)(i)(B). 
Students granted one or more 24-month OPT extensions under paragraph 
(f)(10)(ii)(C)(2) of this section may not accrue an aggregate of more 
than 150 days of unemployment during a total OPT period, including any 
post-completion OPT period described in 8 CFR 274a.12(c)(3)(i)(B) and 
any subsequent 24-month extension period.
    (11) OPT application and approval process--(i) Student 
responsibilities. A student must initiate the OPT application process 
by requesting a recommendation for OPT from his or her DSO. Upon making 
the recommendation, the DSO will provide the student a signed Form I-20 
indicating that recommendation.
    (A) Application for employment authorization. The student must 
properly file an Application for Employment Authorization (Form I-765, 
or successor form), with USCIS, accompanied by the required fee, and 
the supporting documents, as described in the form's instructions.

[[Page 63403]]

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

[[Page 63404]]

supervisor-approved recurrent evaluation to the DSO every six months 
starting from the date the extension begins and ending when the 
student's F-1 status ends, the student changes educational levels at 
the same school, or the student transfers to another school or program, 
or the 24-month OPT extension ends, whichever is first. The validation 
is a confirmation that the student's information in SEVIS for the items 
listed in paragraph (f)(12)(ii)(A) of this section is current and 
accurate. This report is due to the student's DSO within 10 business 
days of each reporting date.
    Note to paragraph (f)(12)(ii)(B): The supervisor-approved recurrent 
evaluation, described in paragraph (f)(10)(ii)(C)(9) of this section, 
is noted here for ease of reference; this evaluation is an update to 
the fully executed Mentoring and Training Plan that the student submits 
to his or her DSO.
0
3. Revise Sec.  214.3(g)(2)(ii)(F) to read as follows:


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

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

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

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

Subpart B--Employment Authorization

0
5. Revise Sec.  274a.12(b)(6)(iv) and (v) and (c)(3)(i) to read as 
follows:


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

* * * * *
    (b) * * *
    (6) * * *
    (iv) An employment authorization document under paragraph 
(c)(3)(i)(C) of this section based on a 24-month STEM Optional 
Practical Training extension, and whose timely filed employment 
authorization request is pending and employment authorization issued 
under paragraph (c)(3)(i)(B) of this section has expired. Employment is 
authorized beginning on the expiration date of the authorization issued 
under paragraph (c)(3)(i)(B) of this section and ending on the date of 
USCIS' written decision on the current employment authorization 
request, but not to exceed 180 days; or
    (v) Pursuant to 8 CFR 214.2(h) is seeking H-1B nonimmigrant status 
and whose duration of status and employment authorization have been 
extended pursuant to 8 CFR 214.2(f)(5)(vi).
* * * * *
    (c) * * *
    (3) * * *
    (i)(A) Is seeking pre-completion practical training pursuant to 8 
CFR 214.2(f)(10)(ii)(A)(1) and (2);
    (B) Is seeking authorization to engage in post-completion Optional 
Practical Training (OPT) pursuant to 8 CFR 214.2(f)(10)(ii)(A)(3); or
    (C) Is seeking a 24-month STEM OPT extension pursuant to 8 CFR 
214.2(f)(10)(ii)(C);
* * * * *

Jeh Charles Johnson,
Secretary of Homeland Security.
[FR Doc. 2015-26395 Filed 10-16-15; 8:45 am]
 BILLING CODE 9111-28-P