The Department of Homeland Security recently added 22 new eligible fields of study to its list of STEM-designated degree programs, which will greatly expand opportunities for international students to stay in the United States – and help employers expand their own talent pools. The January 2022 additions mark the first major update to the list since the STEP OPT regulations came into force in 2016. This is a very welcome change for employers, as international students with a American university degree with a major on the list of STEM-designated degree programs are entitled to additional time in authorized work status on their student visas, and also have several chances to enter the lottery registration system annual H-1B. What should employers know about this welcome change?
Foreign students with F-1 nonimmigrant status who have been enrolled full-time for at least one full academic year at a college, university, conservatory, or seminary certified by the Student Visitor and Exchange Program of Immigration and Customs Enforcement (ICE) (SEVP) are eligible for Optional Practical Training (OPT) upon graduation. Currently, this creates a 12-month period during which the student is permitted to work for a U.S. employer in a job directly related to the student’s major field of study, as well as an additional 24 months for students with a bachelor’s or higher degree in science, technology, engineering, or mathematics (STEM) who are employed by U.S. companies enrolled in the E-Verify program (a computer-based program for employers to determine the employment eligibility of new hires and the validity of their social security number). In order to be eligible for STEM extension, the student must also be currently in an approved OPT period based on a designated degree. So, for example, a student with an eligible undergraduate degree but enrolled in OPT on the basis of an MBA would not be eligible.
Under current regulations, a STEM field of study is a field of study “included in the taxonomy of the Ministry of Education’s Curriculum Classification containing Engineering, Biological Sciences, Mathematics and the physical sciences, or a related field.In general, related fields will include fields involving research, innovation, or the development of new technologies using engineering, mathematics, computer science, or the natural sciences (including physical, biological and agricultural sciences).
In recent years, United States Citizenship and Immigration Services (USCIS) has also implemented a set of integrity measures to increase oversight of the STEM OPT program, including:
- requiring individualized training programs developed by the employer and the student;
- require the student to report regularly to the designated academic official (DSO) of the university;
- require the employer to certify that the student will not replace a temporary or permanent full-time or part-time U.S. worker; and
- authorizing on-site visits by ICE (Immigration and Customs Enforcement) to training plans, compensation and non-removal certificates that employers will be required to sign.
The list of STEM-designated degree programs contains all fields of study one would expect, such as engineering, math, chemistry, biology, and physics. In addition, the new announcement adds bioenergy (Educational Program Classification (CIP) code of the Ministry of Education: 03.0210), general forestry (03.0501), production and management of forest resources (03.0510), Human Centered Technology Design (11.0105), Cloud Computing (11.0902), Anthrozoology (30.3401), Climate Science (30.3501), Earth Systems Science (30.3801), Economics and Computing (30.3901), Environmental Geoscience (30.4101) ), Geobiology (30.4301), Geography and Environmental Studies (30.4401), Mathematical Economics (30.4901), Mathematics and Atmospheric/Oceanic Sciences (30.5001), Data Science, General (30.7001), Data Analysis, General (30.7101), Analysis Business (30.7102), Data Visualization (30.7103), Financial Analysis (30.7104), Data Analysis, Other (30.7199), Industrial and Organizational Psychology (42.2804) and Social Sciences, Research Methodology research and quantitative methods (45.0102).
why it matters
In addition to the additional 24 months of work authorization, the OPT’s two-year STEM extension also has the added benefit of allowing eligible international students to apply for H-1B status multiple times. The number of H-1B visas available per year is subject to a fairly low quota (65,000, with an additional 20,000 for US Masters holders). USCIS runs a lottery for these slots because it typically receives far more petitions than can be accommodated under the quota cap. Since cap requests are generally limited to one H-1B lottery entry per year, unsuccessful applicants may try again the following year.
Additionally, after the end of an individual’s authorized F-1 OPT period (including all eligible STEM extensions), the student has 60 days (without employment authorization) to transition to another classification of no -immigrant, start a new study program or leave. U.S. F-1 students with pending USCIS petitions seeking a change of status to H-1B also remain eligible for automatic stay period extensions, as well as employment authorization, until the pending H-1B petition be adjudicated. If USCIS approves the H-1B petition, the student will be granted an F-1/OPT extension that will allow them to remain in the United States with work authorization until the requested start date of H-status. 1B (even if it is longer than 60 days). Individuals who initially assume H-1B status are not permitted to begin working with H-1B status until October 1 of the year in which they filed their H-1B petition (because that is the beginning of of the next fiscal year of the federal government). This automatic extension provision, known as the “cap gap,” facilitates the situation where a student has an approved H-1B petition, but must either stop working or leave the United States before H-status is achieved. -1B does not take effect on October 1st.
What should you do?
The ability for a foreign worker with a STEM degree to be enrolled in the H-1B lottery for multiple years is an advantage for U.S. employers looking to hire employees with H-1B status. This issue highlights the concern many US tech companies have about the H-1B cap. The critical shortage of domestic talent in science and engineering and the extent to which high-tech employers are therefore necessarily much more dependent on foreign workers than other industries.
The addition of degree programs to the STEM designation means that there are now more highly qualified potential employees available to hire for a longer term. Student visa holders with the STEM designation can work on their student visa for up to three years and have multiple chances of being selected in the annual H-1B lottery. Once an individual is selected in the H-1B lottery, you can then sponsor that employee for H-1B status. If approved by USCIS, the employee would then be eligible for an additional six years of H-1B work authorization status, plus potentially more if you ultimately decide to sponsor the employee for permanent resident status. legal status of the United States (i.e. green card status).