The government recently bestowed a gift on companies who employ recent university graduates. But it is a gift with significant strings attached. The new rule allows F-1 students to extend their optional practical training (OPT) visas for up to 29 months if the following conditions exist:
1. The student must have been enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary certified by U.S. Immigration and Custom Enforcement's (ICE's) Student and Exchange Visitor Program (SEVP);
2. The student must work for a U.S. employer in a job directly related to the student's major area of study;
3. The student must have completed a science, technology, engineering, or mathematics (STEM) degree;
4. The student must report changes in the student's name or address and changes in the employer's name or address as well as periodically verify the accuracy of this reporting information;
5. The employer must be enrolled in U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment verification program; and
6. The employer must report to the student's designated school official (DSO) within 48 hours after the OPT student has been terminated from, or otherwise leaves, his or her employment with that employer prior to end of the authorized period of OPT.
The new rule also extends the authorized period of stay for all F-1 students who have a properly filed H-1B petition and change of status request pending with USCIS. If USCIS approves the H-1B petition, the students will have an extension that enables them to remain in the United States until the requested start date indicated in the H-1B petition takes effect (usually October 1). If the employer did not request a change of status at the time of submitting the H-1B petition, it may do so by sending an email to the service center which accepted the petition within 30 days of the receipt notice.
This interim final rule also implements a programmatic change to allow students to apply for OPT within 60 days of concluding their studies.
Not every employer and student will be able to participate in the new program. First of all, the program is only available to students with STEM degrees. The approved list of STEM programs is at the SEVP’s website. The Department of Homeland Security has acknowledged that it will work with universities to include all relevant degrees.
Second, the employer must be enrolled in the E-Verify program. Only students who work for employers that are properly enrolled in USCIS' E-Verify program will be eligible for the 17-month extension of post-completion OPT.
The E-Verify program is an Internet-based system operated by USCIS, in partnership with the Social Security Administration (SSA). E-Verify electronically compares information contained on the Employment Eligibility Verification Form I-9 with records contained in SSA and DHS databases to help employers verify identity and employment eligibility of newly-hired 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 ensure that no employee will be unfairly discriminated against as a result of the E-Verify program. Violation of the terms of this agreement by the employer is grounds for immediate termination of its participation in the program.
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 Web site, and that information is then checked against information contained in SSA and USCIS databases. 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. Currently, 93 percent of all employer queries are instantly verified as work authorized.
It is important to note that, once an employer enrolls in E-Verify, that employer is responsible for verifying ALL new hires at the hiring site(s) identified in the MOU executed by the employer and DHS. New hires must be verified to be authorized to work in the United States through E-Verify within three days of hire. Additional information on enrollment and responsibilities under E-Verify can be found at. Employers can register for E-Verify on-line at the same site.
Many employers will not be willing to enroll in E-Verify because they feel it is too cumbersome and not reliable. The decision of whether to enroll should be made by a company after careful consideration and consultation with your attorney.
So, while it is now possible to employ recent university graduates for up to 29 months, it may not be worth it after considering the costs of registering for E-Verify.
Wyatt, Tarrant & Combs, LLP has more than 200 attorneys in eight offices located in Kentucky, Tennessee, Mississippi, Colorado and Indiana. The Firm has a comprehensive practice which offers resources and experience equal to those found in the nation’s largest firms, yet we also provide the responsive, personalized service typical of much smaller, specialized firms. Our philosophy is simple: We believe that the practice of law requires sound advice, prompt service, vigorous advocacy, thoughtful counseling and attention to detail.
Glen Krebs has practiced international and immigration law for more than 20 years and has represented clients from more than 65 countries. His Japanese language skills and cultural understanding have also assisted more than 40 Japanese companies to locate in the South Central United States. Mr. Krebs may be contacted at 859-288-7409 or gkrebs@wyattfirm.com.
