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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-04828

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 11, 2016
- **Citation:** 81 FR 13040

## Text

DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[DHS Docket No. ICEB-2015-0002]
RIN 1653-AA72
Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students

AGENCY:

Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

The Department of Homeland Security (DHS) is amending its F-1 nonimmigrant student visa regulations on optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months (STEM OPT extension). This 24-month extension effectively replaces the 17-month STEM OPT extension previously available to certain STEM students. The rule also improves and increases oversight over STEM OPT extensions by, among other things, requiring the implementation of formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. As with the prior 17-month STEM OPT extension, the rule authorizes STEM OPT extensions only for students employed by employers who participate in E-Verify. The rule also includes the “Cap-Gap” relief first introduced in a 2008 DHS regulation for any F-1 student with a timely filed H-1B petition and request for change of status.

DATES:

This rule is effective May 10, 2016, except the addition of 8 CFR 214.16, which is effective from May 10, 2016, through May 10, 2019.

FOR FURTHER INFORMATION CONTACT:

Katherine Westerlund, Policy Chief (Acting), Student and Exchange Visitor Program, U.S. Immigration and Customs Enforcement, 500 12th Street SW., Washington, DC 20536; telephone (703) 603-3400; email
SEVP@ice.dhs.gov
.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Abbreviations

II. Executive Summary

A. Summary of Purpose of the Regulatory Action

B. Summary of the Major Provisions of the Final Rule

C. Costs and Benefits

III. Background

A. Statutory and Regulatory Authority and History

B. The 2015 NPRM

C. Basis and Purpose of Regulatory Action

IV. Discussion of Comments and Final Rule

A. Including a STEM OPT Extension Within the OPT Program

B. Enforcement, Monitoring, and Oversight

C. Qualifying F-1 Nonimmigrants

D. Qualifying Employers

E. STEM OPT Extension Validity Period

F. Training Plan for F-1 Nonimmigrants on a STEM OPT Extension

G. Application Procedures for STEM OPT Extension

H. Travel and Employment Authorization Documentation of Certain F-1 Nonimmigrants Changing Status in the United States or on a STEM OPT Extension

I. Transition Procedures

J. Comments on the Initial Regulatory Impact Analysis

K. Other Comments

V. Statutory and Regulatory Requirements

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

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Unfunded Mandates Reform Act

E. Congressional Review Act

F. Collection of Information

G. Federalism

H. Civil Justice Reform

I. Energy Effects

J. Environment

K. Indian Tribal Governments

L. Taking of Private Property

M. Protection of Children

N. Technical Standards

List of Subjects

The Amendments

I. Abbreviations

CBP U.S. Customs and Border Protection

CFR Code of Federal Regulations

CIP Classification of Instructional Program

DHS Department of Homeland Security

DSO Designated School Official

EAD Employment Authorization Document

FOIA Freedom of Information Act

FR Federal Register

ICE U.S. Immigration and Customs Enforcement

ID Identification

IFR Interim Final Rule

INA Immigration and Nationality Act

NCES National Center for Education Statistics

NPRM Notice of Proposed Rulemaking

OPT Optional Practical Training

RIA Regulatory Impact Analysis

SEVP Student and Exchange Visitor Program

SEVIS Student and Exchange Visitor Information System

STEM Science, Technology, Engineering, or Mathematics

U.S.C. United States Code

USCIS U.S. Citizenship and Immigration Services

II. Executive Summary

A. Purpose of the Regulatory Action

This final rule affects certain F-1 nonimmigrant students who seek to obtain an extension of optional practical training (OPT) based on study at a U.S. institution of higher education in a science, technology, engineering or mathematics (STEM) field, as well as certain F-1 nonimmigrant students who seek so-called Cap-Gap relief. The F-1 nonimmigrant classification is available to individuals seeking temporary admission to the United States as students at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program.
1

To obtain F-1 nonimmigrant classification, the student must be enrolled in a full course of study at a qualifying institution and have sufficient funds for self-support during the entire proposed course of study. Such course of study must occur at a school authorized by the U.S. government to accept international students.

1
For purposes of 8 CFR 214.2(f), a “college or university” is an institution of higher learning that awards recognized bachelor's, master's, doctoral or professional degrees.
See
8 CFR 214.3(a)(2)(A). A career or technical institution may therefore be categorized as a “college or university” if it awards such degrees.

OPT is a form of temporary employment available to F-1 students (except those in English language training programs) that directly relates to a student's major area of study in the United States. A student can apply to engage in OPT during his or her academic program (“pre-completion OPT”) or after completing the academic program (“post-completion OPT”). A student can apply for 12 months of OPT at each education level (
e.g.,
one 12-month OPT period at the bachelor's level and another 12-month period at the master's level). While school is in session, the student may work up to 20 hours per week pursuant to OPT.

This final rule provides for an extension of the OPT period for certain F-1 students who have earned certain STEM degrees and participate in practical training opportunities with employers that meet certain requirements. The Department of Homeland Security (DHS) first introduced an extension of OPT for STEM graduates in a 2008 interim final rule (2008 IFR).
See
73 FR 18944 (Apr. 8, 2008). Under the 2008 IFR, an F-1 student with a STEM degree from a U.S. institution of higher education could apply for an additional 17 months of

OPT (17-Month STEM OPT extension), provided that the employer from which the student sought employment was enrolled in and remained in good standing in the E-Verify electronic employment eligibility verification program (E-Verify), as determined by U.S. Citizenship and Immigration Services (USCIS). As discussed in further detail below, on August 12, 2015, the U.S. District Court for the District of Columbia ordered the
vacatur
of the 2008 IFR on procedural grounds and remanded the issue to DHS. The court stayed the vacatur until February 12, 2016 to give DHS the opportunity to issue a new rule related to STEM OPT extensions through notice-and-comment rulemaking.

On October 19, 2015, DHS published a notice of proposed rulemaking (NPRM) in the
Federal Register
to reinstate the STEM OPT extension, with changes intended to enhance the educational benefit afforded by the extension and to increase program oversight, including safeguards to protect U.S. workers.
See
80 FR 63376. On January 23, 2016, the Court further stayed its vacatur until May 10, 2016, to provide DHS additional time to complete the rulemaking following review of public comments received during the comment period and to allow the Department to publish the rule with a 60-day delayed effective date to provide sufficient time for efficient transition to the new rule's requirements.

B. Summary of the Major Provisions of the Final Rule

1. Summary of Final Rule

This rule finalizes the NPRM, with certain changes made following review and consideration of the public comments received by DHS. Under this rule, a qualifying F-1 student with a STEM degree who has been granted 12 months of practical training pursuant to the general OPT program may apply to DHS for a 24-month extension of his or her period of practical training (STEM OPT extension).

The core purpose of the STEM OPT extension is to allow participating students to supplement their academic knowledge with valuable practical STEM experience. Accordingly, as is the case with practical training generally, a student's practical training pursuant to the STEM OPT extension must be directly related to the student's major area of study. The student's STEM degree must be awarded by an accredited U.S. college or university and be in a field recognized as a STEM field by DHS. The student may base the extension on the student's most recent academic degree, or may (subject to a number of requirements described in more detail below) base the extension on a STEM degree that the student earned earlier in his or her academic career in the United States. Under this rule, a student may be eligible for up to two, separate STEM OPT extensions over the course of his or her academic career, upon completing two qualifying STEM degrees at different educational levels.

This rule includes a number of measures intended to better ensure the educational benefit, integrity, and security of the STEM OPT extension. For instance, the rule requires each STEM OPT student to prepare and execute with their prospective employer a formal training plan that identifies learning objectives and a plan for achieving those objectives. The STEM OPT student and his or her employer must work together to finalize that plan. The rule also prohibits students from basing a STEM OPT extension on a degree from an unaccredited educational institution. Moreover, to ensure compliance with program requirements, the rule provides for DHS site visits to employer locations in which STEM OPT students are employed. Although DHS will generally give notice of such site visits, DHS may conduct an unannounced site visit if it is triggered by a complaint or other evidence of noncompliance with the regulations.

The rule also includes a number of requirements intended to help DHS track STEM OPT students and further enhance the integrity of the STEM OPT extension. Most prominent among these are reporting requirements, which the rule imposes primarily upon students and designated school officials (DSOs). The rule includes four main reporting requirements, as follows. First, the rule imposes a six-month validation requirement, under which a STEM OPT student and his or her school must work together to confirm the validity of certain biographical, residential, and employment information concerning the student, including the student's legal name, the student's address, the employer's name and address, and current employment status. Second, the rule imposes an annual self-evaluation requirement, under which the student must report to the DSO on his or her progress with the practical training. The student's employer must sign the self-evaluation prior to its submission to the DSO. Third, the rule requires that the student and employer report changes in employment status, including the student's termination or departure from the employer. Fourth, both the student and the employer are obligated to report to the DSO material changes to, or material deviations from, the student's formal training plan.

Finally, this rule includes a number of specific obligations for STEM OPT employers. These obligations are intended to ensure the integrity of the program and provide safeguards for U.S. workers in STEM fields. Among other things, the employer must be enrolled in and remain in good standing with E-Verify; assist with the aforementioned reporting and training plan requirements; and attest that (1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student on a STEM OPT extension will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity helps the student attain his or her training objectives.

We describe each of these provisions in more detail below.

2. Comparison to the 2008 IFR

As noted above, this rule contains a number of changes in comparison to the 2008 IFR, while retaining other provisions of the 2008 IFR. Changes made by this rule in comparison to the 2008 IFR include:

•
Lengthened STEM OPT Extension Period.
The rule increases the OPT extension period for STEM OPT students from the 2008 IFR's 17 months to 24 months. The final rule also makes F-1 students who subsequently enroll in a new academic program and earn another qualifying STEM degree at a higher educational level eligible for one additional 24-month STEM OPT extension.

•
STEM Definition and CIP Categories for STEM OPT Extension.
The rule defines which fields of study (more specifically, which Department of Education Classification of Instructional Program (CIP) categories) may serve as the basis for a STEM OPT extension. The rule also sets forth a process for public notification in the
Federal Register
when DHS updates the list of eligible STEM fields on the Student and Exchange Visitor Program's (SEVP's) Web site.

•
Training Plan for STEM OPT Students.
To improve the educational benefit of the STEM OPT extension, the rule requires employers to implement formal training programs to augment students' academic learning through practical experience. This requirement is intended to equip students with a more comprehensive understanding of

their selected area of study and broader functionality within that field.

•
Previously Obtained STEM Degrees.
The rule permits an F-1 student participating in a 12-month period of post-completion OPT based on a non-STEM degree to use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, as long as both degrees were received from currently accredited educational institutions. The practical training opportunity must be directly related to the previously obtained STEM degree.

•
Safeguards for U.S. Workers in Related Fields.
To guard against adverse impacts on U.S. workers, the rule requires terms and conditions of a STEM practical training opportunity (including duties, hours, and compensation) to be commensurate with those applicable to similarly situated U.S. workers. As part of completing the Form I-983, Training Plan for STEM OPT Students, an employer must attest that: (1) It has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives.

•
School Accreditation, Employer Site Visits, and Employer Reporting.
To improve the integrity of the STEM OPT extension, the rule: (1) Generally limits eligibility for such extensions to students with degrees from schools accredited by an accrediting agency recognized by the Department of Education; (2) clarifies DHS discretion to conduct employer site visits at worksites to verify whether employers are meeting program requirements, including that they possess and maintain the ability and resources to provide structured and guided work-based learning experiences; and (3) institutes new employer reporting requirements.

•
Compliance Requirements and Unemployment Limitation.
In addition to reinstating the 2008 IFR's reporting and compliance requirements, the rule revises the number of days an F-1 student may remain unemployed during the practical training period. The program in effect before this final rule allowed a student to be unemployed up to 90 days during his or her initial period of post-completion OPT, and up to an additional 30 days (for a total of 120 days) for a student who received a 17-month STEM OPT extension. This rule retains the 90-day maximum period of unemployment during the initial period of post-completion OPT but allows an additional 60 days (for a total of 150 days) for a student who obtains a 24-month STEM OPT extension.

The rule retains other provisions of the 2008 IFR, as follows:

•
E-Verify and Reporting Requirements for STEM OPT Employers.
The rule requires STEM OPT employers to be enrolled in and remain in good standing with E-Verify, as determined by USCIS, and to report changes in the STEM OPT student's employment to the DSO within five business days.

•
Reporting Requirements for STEM OPT Students.
The rule requires STEM OPT students to report to their DSOs any name or address changes, as well as any changes to their employers' names or addresses. Students also must verify the accuracy of this reporting information periodically.

•
Cap-Gap Extension for F-1 Students with Timely Filed H-1B Petitions and Requests for Change of Status.
With a minor revision to improve readability, the rule includes the 2008 IFR's Cap-Gap extension provision, under which DHS temporarily extends an F-1 student's duration of status and any current employment authorization if the student is the beneficiary of a timely filed H-1B petition and change-of-status request pending with or approved by USCIS. The Cap-Gap extension extends the OPT period until the beginning of the new fiscal year (
i.e.,
October 1 of the fiscal year for which the H-1B status is being requested).

3. Summary of Changes From the Notice of Proposed Rulemaking

Following careful consideration of public comments received, DHS also has made several modifications to the regulatory text proposed in the NPRM. Those changes include the following:

•
Time of Accreditation.
For a STEM OPT extension based on a previously obtained STEM degree, the student must have obtained that degree from an educational institution that is accredited at the time of the student's application for the extension.

•
SEVP Certification Required for Prior Degrees.
For a STEM OPT extension based on a previously obtained STEM degree, the degree also must have been issued by an educational institution that is SEVP-certified at the time of application for the extension. Overseas campuses of U.S. educational institutions are not eligible for SEVP certification.

•
Site Visit Notifications.
DHS will provide notice to the employer 48 hours before any site visit unless a complaint or other evidence of noncompliance with the STEM OPT extension regulations triggers the visit, in which case DHS may conduct the visit without notice.

•
Focus on Training.
DHS has modified the proposed rule's Mentoring and Training Plan to increase the focus on training. The information collection instrument for this plan is now titled Form I-983, Training Plan for STEM OPT Students.

•
Existing Employer Training Programs.
This rule streamlines and clarifies the regulatory text and Training Plan for STEM OPT Students to clarify that employers may use existing training programs to satisfy certain regulatory requirements for evaluating the progress of STEM OPT students.

•
Employer Attestation.
The rule revises the employer attestation to require that the employer attest that the student will not replace a full- or part-time, temporary or permanent U.S. worker.

•
Evaluation of Student Progress.
The rule revises the evaluation requirement to require that the student and an appropriate individual in the employer's organization sign the evaluation on an annual basis, with a mid-point evaluation during the first 12-month interval and a final evaluation completed prior to the conclusion of the STEM OPT extension.

DHS also has clarified its interpretation of the rule in a number of ways, as explained more fully below.

C. Costs and Benefits

The anticipated costs of compliance with the rule, as well as the benefits, are discussed at length in the section below, entitled “Statutory and Regulatory Requirements—Executive Orders 12866 and 13563.” A combined Regulatory Impact Analysis and a Final Regulatory Flexibility Analysis are available in the docket for this rulemaking. A summary of the analysis follows.

DHS estimates that the costs imposed by the implementation of this rule will be approximately $737.6 million over the 10-year analysis time period, discounted at 3 percent, or $588.5 million, discounted at 7 percent. This amounts to $86.5 million per year when annualized at a 3 percent discount rate, or $83.8 million per year when annualized at a 7 percent discount rate. The Summary Table at the end of this section presents the cost estimates in more detail.

With respect to benefits, making the STEM OPT extension available to additional students and lengthening the 17-month extension to 24 months will enhance certain students' ability to achieve the objectives of their courses of

study by allowing them to gain valuable knowledge and skills through on-the-job training that may be unavailable in their home countries. The changes will also benefit the U.S. educational system, U.S. employers, and the broader U.S. economy. The rule will benefit the U.S. educational system by helping to ensure that the nation's colleges and universities remain globally competitive in attracting international students in STEM fields. U.S. employers will benefit from the increased ability to rely on skilled U.S.-educated STEM OPT students, as well as their knowledge of markets in their home countries. The nation also will benefit from the increased retention of such students in the United States, including through increased research, innovation, and other forms of productivity that enhance the nation's economic, scientific, and technological competitiveness.

Furthermore, strengthening the STEM OPT extension by implementing requirements for training, tracking objectives, reporting on program compliance, and accreditation of participating schools will further prevent abuse of the limited on-the-job training opportunities provided by OPT in STEM fields. These and other elements of the rule also will improve program oversight, strengthen the requirements for program participation, and better ensure that U.S. workers are protected.

The Summary Table below presents a summary of the benefits and costs of the rule. The costs are discounted at 7 percent. Students will incur costs for completing application forms and paying application fees; reporting to DSOs; preparing (with their employers) the Training Plan for STEM OPT Students required by this rule; and periodically submitting updates to employers and DSOs. DSOs will incur costs for reviewing information and forms submitted by students, inputting required information into the Student and Exchange Visitor Information System (SEVIS), and complying with other oversight requirements related to prospective and participating STEM OPT students. Employers of STEM OPT students will incur burdens for preparing the Training Plan with students, confirming students' evaluations, enrolling in (if not previously enrolled) and using E-Verify to verify employment eligibility for all new hires, and complying with additional requirements related to E-Verify.

Summary Table—Estimated Costs and Benefits of Final Rule
[in millions of 2014 dollars]

STEM OPT
E-Verify
Total

10-Year Cost Annualized at 7 Percent Discount Rate
$79.8
$4.0
$83.8

10-Year Cost Annualized at 3 Percent Discount Rate
$82.3
$4.2
$86.5

Qualitative Costs
• Cost to students and schools resulting from accreditation requirement;

• Cost to employers from the requirement to provide STEM OPT students commensurate compensation to similarly situated U.S. workers; and

• Decreased practical training opportunities for students no longer eligible for the program due to improvements to the STEM OPT extension.

Monetized Benefits
N/A
N/A
N/A

Non-monetized Benefits
• Increased ability of students to gain valuable knowledge and skills through on-the-job training in their field;

• Increased global attractiveness of U.S. colleges and universities; and

• Increased program oversight, strengthened requirements for program participation, and new protections for U.S. workers.

Net Benefits
N/A
N/A
N/A

Finally, in response to public comments, DHS revised the regulatory impact analysis (RIA) published with the NPRM to reflect the changes made in the final rule and include new data that has become available since the publication of the NPRM, such as updated compensation rates. DHS's major changes to the RIA from the NPRM are summarized in the table below.

Table 1—Changes From Initial RIA to Final RIA

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

Population of Affected Parties

Number of Students due to Increased CIP List Eligibility as a percent of New STEM OPT Extension Students

10%
5%
−5%
• The final rule's changes to the CIP list are not expected to result in the same expansion of eligibility as DHS anticipated in the proposed rule.

Number of Transitional Students

18,210
17,610
−600
• Revised the estimate of transitional students based on the effective date of final rule.

Wages

STEM Students' Weighted Average Wage Rate (unloaded)

$23.81
$26.06
$2.25

• New FLC Data Center Online Wage Library data for 2014-2015 was published.
• Revised STEM occupations list to more closely reflect the STEM OPT extension degrees.

Training Plan Form for STEM OPT Students—Initially Completing Training Plan Form

Student Burden

$58.05
$82.44
$24.39
• Time burden increased from 1.67 hours to 2.17 hours in response to public comments.

Employer Burden

$123.47
$280.81
$157.34

• Training Plan form revisions require up to two employer officials contributing to the initial completion of the Training Plan form.
• Time burden increased from 2 hours to 4 hours in response to public comments.

DSO Burden

$13.09
$52.31
$39.22
• Time burden revised from 0.33 hours to 1.33 hours to reflect public comments.

Training Plan Form for STEM OPT Students—12-Month Evaluations

Student Burden

2
$139.04

$114.15
−$24.89

• Frequency of evaluations changed from six to 12 months.
• Updated STEM student wage rate.
• Time burden increased from 1.17 hours to 1.5 hours in response to public comments.

Employer Burden

$78.96
$118.44
$39.48

• Frequency of evaluations changed from six to 12 months.
• Time burden increased from 0.25 to 0.75 hours in response to public comments.

DSO Burden

3
$26.74

$78.66
$51.92

• Frequency of evaluations changed from six to 12 months.
• Time burden increased from 0.33 hours to 1 hour in response to public comments.

Additional Implementation Costs

Evaluations

4
$10.57

$5.29
−$5.28
• Frequency of evaluations changed from six to 12 months.

Reporting Requirements

Student Opportunity Cost for Updating Information Reports

$12.94
$0
$12.94
• The student Reporting Requirements in the Final Rule do not represent a change from the baseline.

E-Verify Requirements for STEM OPT Extension Employers

Total Enrolled Employers Who Would Discontinue E-Verify without Final Rule over 10 years

70,025
8,753
−61,272
• Updated based on further research.

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

III. Background

A. Statutory and Regulatory Authority

and History

2
In the NPRM, DHS presented a combined total student burden for six-month evaluations and validation check-ins (1.17 hours). Note that the NPRM cost estimate only included 1 hour for the student to complete the evaluation. The NPRM cost estimate did not include a separate estimate of 0.17 hours for associated with the six-month validation report requirement from the IFR. Hence, this value, $139.04 (= 2 evaluations × 1 hour × $34.76/hour), differs from that presented in the NPRM, $162.68 (= 4 evaluations × 1.17 hours × $34.76/hour).

3
In the NPRM, DHS presented the combined total DSO burden for six-month evaluations and validation check-ins. Note that the NPRM estimate only included the 0.17 hours for the DSO to file each evaluation and did not include the 0.17 hours for the DSO to make a six-month validation report to SEVIS. Hence, this value, $26.74 (= 2 evaluations × 0.17 hours × $39.33/hour), differs from that presented in the NPRM, $52.39 (= 4 evaluations and validation check-ins × 0.333 hours × $39.33/hour).

4
In the NPRM, DHS presented the combined total implementation cost for six-month evaluations and validation check-ins. Note that the NPRM estimate only included the costs associated with the six-month evaluations. Hence, this value, $10.57 ((= $78.96 + 26.74) × 10%), differs from that presented in the NPRM, $13.09 ((= $78.96 + $52.39) × 10%).

The Secretary of Homeland Security (Secretary) has broad authority to administer and enforce the nation's immigration laws.
See generally
6 U.S.C. 202; Immigration and Nationality

Act of 1952, as amended (INA), Sec. 103, 8 U.S.C. 1103. Section 101(a)(15)(F)(i) of the INA establishes the F-1 nonimmigrant classification for individuals who wish to come to the United States temporarily to enroll in a full course of study at an academic or language training school certified by U.S. Immigration and Customs Enforcement's (ICE's) SEVP. 8 U.S.C. 1101(a)(15)(F)(i). The INA provides the Secretary with broad authority to determine the time and conditions under which nonimmigrants, including F-1 students, may be admitted to the United States.
See
INA Sec. 214(a)(1), 8 U.S.C. 1184(a)(1). The Secretary also has broad authority to determine which individuals are authorized for employment in the United States.
See, e.g.,
INA Sec. 274A(h)(3), 8 U.S.C. 1324a(h)(3).

Federal agencies dealing with immigration have long interpreted Sec. 101(a)(15)(F)(i) of the INA and related authorities to encompass on-the-job training that supplements classroom training.
See, e.g.,
12 FR 5355, 5357 (Aug. 7, 1947) (authorizing employment for practical training under certain conditions, pursuant to statutory authority substantially similar to current INA Sec. 101(a)(15)(F)(i)); 38 FR 35425, 35426 (Dec. 28, 1973) (also authorizing, pursuant to the INA, employment for practical training under certain conditions).
5

5
During a brief period following the Immigration Act of 1990, Congress expanded employment authorization for foreign students (referred to throughout this preamble as “international students”) by allowing for a three-year pilot program in which students could be employed off-campus in positions
unrelated
to the student's field of study. Pub. L. 101-649, Sec. 221(a), 104 Stat. 4978, 5027 (Nov. 29, 1990). In general, however, practical training has historically been limited to the student's field of study.

ICE manages and oversees significant elements of the F-1 student process, including the certification of schools and institutions in the United States that enroll F-1 students. In overseeing these institutions, ICE uses SEVIS to track and monitor international students and communicate with the schools that enroll them while they are in the United States and participating in educational opportunities. Additional statutory and other authority requires and supports this tracking and monitoring.
6

6
DHS derives its authority to manage these programs from several sources, including, in addition to the authorities cited above, section 641 of Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-546, 3009-704 (Sep. 30, 1996) (codified as amended at 8 U.S.C. 1372), which authorizes the creation of a program to collect current and ongoing information provided by schools and exchange visitor programs regarding F and other nonimmigrants during the course of their stays in the United States, using electronic reporting technology where practicable. Consistent with this statutory authority, DHS manages these programs pursuant to Homeland Security Presidential Directive—2 (HSPD—2), Combating Terrorism Through Immigration Policies (Oct. 29, 2001), as amended,
http://www.gpo.gov/fdsys/pkg/CPRT-110HPRT39618/pdf/CPRT-110HPRT39618.pdf
); and Section 502 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 107-173, 116 Stat. 543, 563 (May 14, 2002). HSPD-2 requires the Secretary of Homeland Security to conduct periodic, ongoing reviews of institutions certified to accept F nonimmigrants, and to include checks for compliance with recordkeeping and reporting requirements.
See
Weekly Comp. Pres. Docs., 37 WCPD 1570,
http://www.gpo.gov/fdsys/granule/WCPD-2001-11-05/WCPD-2001-11-05-Pg1570/content-detail.html
.
Section 502 of the Enhanced Border Security and Visa Entry Reform Act of 2002 directs the Secretary to review the compliance with recordkeeping and reporting requirements under 8 U.S.C. 1101(a)(15)(F) and 1372 of all schools approved for attendance by F students within two years of enactment, and every two years thereafter. Moreover, the programs discussed in this rule, as is the case with all DHS programs, are carried out in keeping with DHS's primary mission, which includes the responsibility to “ensure that the overall economic security of the United States is not diminished by the efforts, activities, and programs aimed at securing the homeland.” 6 U.S.C. 111(b)(1)(F).

1. OPT Background

A student in F-1 status may remain in the United States for the duration of his or her education if otherwise meeting the requirements for the maintenance of status. 8 CFR 214.2(f)(5)(i). Once an F-1 student has completed his or her academic program and any subsequent period of OPT, the student must generally leave the United States unless he or she enrolls in another academic program, either at the same school or at another SEVP-certified school; changes to a different nonimmigrant status; or otherwise legally extends his or her period of authorized stay in the United States. As noted, DHS regulations have long defined an F-1 student's duration of status to include the student's practical training.
See, e.g.,
48 FR 14575, 14583 (Apr. 5, 1983).
7

Additionally, an F-1 student is allowed a 60-day “grace period” after the completion of the academic program or OPT to prepare for departure from the United States. 8 CFR 214.2(f)(5)(iv).

7
See
Washington Alliance of Tech. Workers
v.
U.S. Dep't of Homeland Security,
No. 1:14-cv-00529, slip op. at 25-26 (D.D.C. Aug. 12, 2015) (finding that DHS's interpretation permitting “employment for training purposes without requiring school enrollment” is “`longstanding' and entitled to [judicial] deference”).

Unless an F-1 student meets certain limited exceptions, he or she may not be employed in the United States during the term of his or her F-1 status. DHS permits an F-1 student who has been enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary certified by SEVP, and who has otherwise maintained his or her status, to apply for practical training to work for a U.S. employer in a job directly related to his or her major area of study. 8 CFR 214.2(f)(10).

An F-1 student may seek employment through OPT either during his or her academic program (pre-completion OPT) or immediately after graduation (post-completion OPT). The student remains in F-1 nonimmigrant status throughout the OPT period. Thus, an F-1 student in post-completion OPT does not have to leave the United States within 60 days after graduation, but instead has authorization to remain for the entire post-completion OPT period. 8 CFR 214.2(f)(5)(i). This initial post-completion OPT period (
i.e.,
a period of practical training immediately following completion of an academic program) can be up to 12 months, except in certain circumstances involving students who engaged in either pre-completion OPT or curricular practical training (CPT).
8

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

2. Regulatory History

On April 8, 2008, DHS published an interim final rule in the
Federal Register
(73 FR 18944) that, in part, extended the maximum period of OPT from 12 to 29 months (through a 17-month “STEM OPT extension”) for an F-1 student who obtained a degree in a designated STEM field from a U.S. institution of higher education and who was engaged in practical training with an employer that enrolled in and remained in good standing with E-Verify, as determined by USCIS. As a result of that rule, F-1 students granted STEM OPT extensions were required to report to their DSOs any changes in their names or addresses, as well as any changes in their employer's information (including name or address), and periodically validate the accuracy of this information. The rule further required employers of such students to report to the relevant DSO within two

business days if a student was terminated from or otherwise left employment prior to the end of the authorized period of OPT. The rule allowed an F-1 student to apply for post-completion OPT within the 60-day grace period at the conclusion of his or her academic program. The rule also limited the total period in which students on initial post-completion OPT could be unemployed to 90 days. Students granted 17-month STEM OPT extensions were provided an additional 30 days in which they could be unemployed, for an aggregate period of 120 days.

The 2008 IFR also addressed the so-called Cap-Gap problem, which results when an F-1 student's F-1 status and OPT-based employment authorization expires before the start date of an approved H-1B petition and change-of-status request filed on his or her behalf (“H-1B change-of-status petition”). Specifically, F-1 students on initial post-completion OPT frequently complete their period of authorized practical training in June or July of the year following graduation. Before the 2008 IFR, if such a student was a beneficiary of an H-1B petition that was pending with or approved by USCIS and requested a change of status to H-1B classification commencing in the following fiscal year (
i.e.,
beginning on October 1), the student would be unable to obtain H-1B status before his or her OPT period expired. Such students were often required to leave the United States for a few months until they were able to obtain their H-1B status on October 1. The 2008 IFR addressed this problem through a Cap-Gap provision that briefly extended the F-1 student's duration of status and employment authorization to enable the student to remain in the United States until he or she could change to H-1B status.

DHS received over 900 comments in response to the 2008 IFR. Public comments received on the 2008 IFR and other records may be reviewed at the docket for that rulemaking, No. ICEB-2008-0002, available at
www.regulations.gov
.

Washington Alliance Litigation Regarding the 2008 IFR

On August 12, 2015, the U.S. District Court for the District of Columbia issued an order in the case of
Washington Alliance of Tech. Workers
v.
U.S. Dep't of Homeland Security,
— F. Supp. 3d —, 2015 WL 9810109, (D.D.C. Aug. 12, 2015) (slip op.). Although the court held that the 2008 IFR rested upon a reasonable interpretation of the INA,
9

the court also held that DHS violated the notice and comment provisions of the Administrative Procedure Act (APA), 5 U.S.C. 553, by promulgating the 2008 IFR without advance notice and opportunity for public comment. In its order, the court invalidated the 2008 IFR as procedurally deficient, and remanded the issue to DHS.

9
With respect to DHS's interpretation of the F-1 student visa provisions in the INA, the court found ample support for DHS's longstanding practice of “permit[ting F-1 student] employment for training purposes without requiring ongoing school enrollment.”
Washington Alliance
, No. 1:14-cv-00529, slip op. at 26-27. The court recognized the Secretary's broad authority under the INA “to regulate the terms and conditions of a nonimmigrant's stay, including its duration.”
Id.
at *29 (citing 8 U.S.C. 1103(a), 1184(a)(1)). The court also recognized the Secretary's authority to consider the potential economic contributions and labor market impacts that may result from particular regulatory decisions.
Id.
(citing 6 U.S.C. 111(b)(1)(F)).

Although the court vacated the 2008 IFR, the court stayed the
vacatur
until February 12, 2016, to provide time for DHS to correct the procedural deficiency through notice-and-comment rulemaking.
Id.
at *37.
10

The court specifically explained that the stay was necessary to avoid “substantial hardship for foreign students and a major labor disruption for the technology sector” and that immediate
vacatur
of the STEM OPT extension would be “seriously disruptive.”
Id.
at *36. On January 23, 2016, the Court further stayed its vacatur by 90 days until May 10, 2016.
Washington Alliance of Tech. Workers
v.
U.S. Dep't of Homeland Security,
No. 1:14-cv-00529, (D.D.C. Jan. 23, 2016) (slip op.). The court further stayed the vacatur to provide DHS an additional 30 days to complete the rulemaking and to allow the Department to publish the rule with a 60-day delayed effective date.
Id.

10
In an earlier preliminary ruling in the case regarding plaintiff's challenge to DHS's general OPT and STEM OPT extension programs, the court held that plaintiff did not have standing to challenge the general OPT program on behalf of its members because it had not identified a member of its association who suffered any harm from the general OPT program.
See Washington Alliance of Tech. Workers
v.
U.S. Dep't of Homeland Security,
74 F. Supp. 3d 247, 252 & n.3 (D.D.C. 2014). The court held in the alternative that the challenge to the general OPT program was barred by the applicable statute of limitations.

Litigation in this matter is ongoing, as the plaintiff has appealed a portion of the court's August 12, 2015, decision. Thus the final disposition of the case remains to be determined. Nevertheless, it is clear that DHS must issue a final rule that will take effect before the court's stay expires on May 10, 2016, or a significant number of students will be unable to pursue valuable training opportunities that would otherwise be available to them.

B. The 2015 NPRM

After the court's ruling, DHS acted quickly to address the imminent
vacatur
of the 2008 IFR and the significant uncertainty surrounding the status of thousands of students in the United States. As of September 16, 2015, over 34,000 students were in the United States on a STEM OPT extension. In addition, hundreds of thousands of international students, most of whom are in F-1 status, already have chosen to enroll in U.S. educational institutions and are currently pursuing courses of study in fields that may provide eligibility for this program. Some of those students may have considered the opportunities offered by the STEM OPT extension when deciding whether to pursue their degree in the United States. DHS therefore acted swiftly to mitigate the uncertainty surrounding the 2008 IFR. Prompt action is particularly appropriate with respect to those students who have already committed to study in the United States, in part based on the possibility of furthering their education through an extended period of practical training in the world's leading STEM economy.
11

11
The National Science Foundation reports that the United States performs more science and engineering Research and Development (R&D) than any other nation, accounting for just under 30% of the global total.
See
Science and Engineering Indicators 2014 (NSF) at Chapter 4 (International Comparisons), at 4-17, available at
http://www.nsf.gov/statistics/seind14/index.cfm/chapter-4
. According to NSF, the United States expends $429 billion of the estimated $1.435 trillion in global science and engineering R&D (p. 4-17), and business, government, higher education, and non-profits in the United States expend more than double that of any other country (Table 4-5).

Accordingly, on October 19, 2015, DHS published an NPRM in the
Federal Register
, proposing to reinstate the STEM OPT extension along with changes intended to improve the integrity and academic benefit of the extension and to better protect U.S. workers.
12

80 FR 63376.
13

During the public comment period, approximately 50,500 comments were submitted on the

NPRM and related forms.
14

Comments were submitted by a range of entities and individuals, including U.S. and international students, U.S. workers, schools and universities, professional associations, labor organizations, advocacy groups, businesses, two members of Congress, and other interested persons. DHS thanks the public for its helpful input and engagement during the public comment period.
15

12
These proposed changes were consistent with the direction provided in the Secretary of Homeland Security's November 20, 2014 memorandum entitled, “Policies Supporting U.S. High Skilled Businesses and Workers.” DHS recognized the nation's need to evaluate, strengthen, and improve practical training as part of an overall strategy to enhance our nation's economic, scientific, and technological competitiveness. Highly skilled persons educated in the United States contribute significantly to the U.S. economy, including through advances in entrepreneurial and research and development endeavors, which correlate highly with overall economic growth and job creation.

13
DHS hereby incorporates all background material included in the NPRM in this final rule.

14
Comments can be viewed in the online docket for this rulemaking at
http://www.regulations.gov
. Enter “ICEB-2015-0002” into the search bar to find the docket.

15
One commenter requested a public meeting on the NPRM, “[g]iven the major impact that the rules will have on the educational and labor markets, and the lack of attention in the rule to the adverse impacts the program's insufficient regulations and worker protections can have on U.S. workers and students.” DHS has determined that a public meeting would not be in the public interest, in light of the impending
vacatur
date and the extensive discussion of these issues in the NPRM, the public comments, and this final rule.

This final rule builds upon the NPRM and the public comments received. DHS intends for this rule to further strengthen the integrity and educational benefit of STEM OPT extensions, as well as better protect U.S. workers.

C. Basis and Purpose of Regulatory Action

In finalizing this rule, DHS recognizes the substantial economic, scientific, technological, and cultural benefits provided by the F-1 nonimmigrant program generally, and STEM OPT extensions in particular.

1. Benefits of International Students in the United States

International students have historically made significant contributions to the United States, both through the payment of tuition and other expenditures in the U.S. economy, as well as by significantly enhancing academic discourse and cultural exchange on campuses throughout the United States. In addition to these general benefits, STEM students further contribute through research, innovation, and the provision of knowledge and skills that help maintain and grow increasingly important sectors of the U.S. economy.

International students, for example, regularly contribute a significant amount of money into the U.S. economy. According to statistics compiled by NAFSA: Association of International Educators (NAFSA), international students made a net contribution of $26.8 billion to the U.S. economy in the 2013-2014 academic year.
16

This contribution included tuition ($19.8 billion) and living expenses for self and family ($16.7 billion), after adjusting for U.S. financial support ($9.7 billion).
17

Public colleges and universities particularly benefit from the payment of tuition by international students, especially in comparison to the tuition paid by in-state students.
18

16
NAFSA: Association of International Educators, “The Economic Benefits of International Students: Economic Analysis for Academic Year 2013-2014,” available at
http://www.nafsa.org/_/File/_/eis2014/USA.pdf
; see also NAFSA, International Student Economic Value Tool, available at

http://www.nafsa.org/economicvalue
.

17

Id.

18
Washington Post, “College Group Targets Incentive Payments for International Student Recruiters” (June 2, 2011), available at
http://www.washingtonpost.com/local/education/college-group-targets-incentive-payments-for-international-student-recruiters/2011/05/31/AGvl5aHH_story.html
.

International students also increase the benefits of academic exchange, while reinforcing ties with other countries and fostering increased understanding of American society.
19

International students, for example, “enrich U.S. universities and communities with unique perspectives and experiences that expand the horizons of American students and [make] U.S. institutions more competitive in the global economy.”
20

At the same time, “the international community in American colleges and universities has implications regarding global relationships, whether [those are] between nation-states, or global business and economic communities.”
21

International education and exchange at the post-secondary level in the United States builds relationships that “promote cultural understanding and dialogue” and bring a global dimension to higher education through the “diversity in culture, politics, religions, ethnicity, and worldview” brought by international students.
22

19

See
The White House, National Security Strategy 29 (May 2010), available at
https://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf
.

20
U.S. Department of State, “Why Internationalize,” available at
https://educationusa.state.gov/us-higher-education-professionals/why-internationalize
.

21
Pamela Leong, “Coming to America: Assessing the Patterns of Acculturation, Friendship Formation, and the Academic Experiences of International Students at a U.S. College,”
Journal of International Students
Vol. 5 (4): 459-474 (2015) at p. 459.

22
Hugo Garcia and Maria de Lourdes Villareal, “The “Redirecting” of International Students: American Higher Education Policy Hindrances and Implications,”
Journal of International Students
Vol. 4 (2): 126-136 (2014) at p. 132.

Accordingly, international students provide substantial benefits to their U.S. colleges and universities, including beneficial economic and cultural impacts. A study by Duke University in 2013 analyzing 5,676 alumni surveys showed that “substantial international interaction was positively correlated with U.S. students' perceived skill development in a wide range of areas across three cohorts.”
23

Current research also suggests that international students contribute to the overall economy by building global connections between their hometowns and U.S. host cities.
24

Evidence links skilled migration to transnational business creation, trade, and direct investment between the United States and a migrant's country of origin.
25

23
Jiali Luo and David Jamieson-Drake, “Examining the Educational Benefits of Interacting with International Students” at 96 (June 2013),
available at

https://jistudents.files.wordpress.com/2013/05/2013-volume-3-number-3-journal-of-international-students-published-in-june-1-2013.pdf
. The authors noted that U.S. educational institutions play an important role in ensuring U.S. students benefit as much as possible from this interaction.

24
Brookings Institution, “The Geography of Foreign Students in U.S. Higher Education: Origins and Destinations” (August 29, 2014), available at
http://www.brookings.edu/research/interactives/2014/geography-of-foreign-students#/M10420
.

25
Sonia Plaza, “Diaspora resources and policies,” in International Handbook on the Economics of Migration, 505-529 (Amelie F. Constant and Klaus F. Zimmermann, eds., 2013).

International STEM students contribute to the United States in all the ways mentioned above. They also contribute more specifically to a number of advanced and innovative fields that are critical to national prosperity and security. By conducting scientific research, developing new technologies, advancing existing technologies, and creating new products and industries, for example, STEM workers diversify our nation's economy and drive economic growth while also producing increased employment opportunities and higher wages for all U.S. workers.
26

Economic research supports the premise that scientists, technology professionals, engineers, and mathematicians (STEM workers) are fundamental components in scientific innovation and technological adoption, and critical drivers of productivity growth in the United States.
27

For example, research has shown that international students who earn a degree and remain in the United States are more likely than native-born workers to engage in activities, such as patenting and the commercialization of patents, that increase U.S. labor productivity.
28

Similarly, other research has found that a 1 percentage point increase in immigrant college graduates' population share increases patents per capita by 9 to 18 percent.
29

Research also has shown that foreign-born workers are particularly innovative, especially in research and development, and that they have positive spillover effects on native-born workers.
30

One paper, for example, shows that foreign-born workers patent at twice the rate of U.S.-born workers, and that U.S.-born workers patent at greater rates in areas with more immigration.
31

The quality of the nation's STEM workforce in particular has played a central role in ensuring national prosperity over the last century and helps bolster the nation's economic future.
32

This, in turn, has helped to enhance national security, which is dependent on the nation's ability to maintain a growing and innovative economy.
33

Innovation is crucial for economic growth, which is vital to continued funding for defense and security.
34

26

See
Michael Greenstone and Adam Looney, “A Dozen Economic Facts About Innovation” 2-3, available at
http://www.brookings.edu/~/media/research/files/papers/2011/8/innovation-greenstone-looney/08_innovation_greenstone_looney.pdf
[hereinafter Greenstone and Looney];
Bureau of Labor Statistics 2014 data show that employment in occupations related to STEM has been projected to grow more than nine million, or 13 percent, during the period between 2012 and 2022, 2 percent faster than the rate of growth projected for all occupations. Bureau of Labor Statistics, Occupational Outlook Quarterly, Spring 2014, “STEM 101: Intro to Tomorrow's Jobs” 6, available at
http://www.stemedcoalition.org/wp-content/uploads/2010/05/BLS-STEM-Jobs-report-spring-2014.pdf
. See also
Australian Government, Strategic Review of the Student Visa Program 2011 Report, ix, 1 (June 30, 2011), available at
http://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/2011-knight-review.pdf#search=knight%20review

(concluding that the economic benefit of international master's

and doctoral research students includes third-party job creation).

27

See, e.g.,
Economics and Statistics Administration, Department of Commerce, “STEM: Good Jobs Now and For the Future” 5 (July 2011), available at
http://www.esa.doc.gov/Reports/stem-good-jobs-now-and-future
(“Science, technology, engineering and mathematics (STEM) workers drive our nation's innovation and competitiveness by generating new ideas, new companies and new industries.”); Giovanni Peri, Kevin Shih, Chad Sparber, “Foreign STEM Workers and Native Wages and Employment in U.S. Cities” 1 (National Bureau of Economic Research, May 2014) Available at
http://www.nber.org/papers/w20093

(observing that “Scientists, Technology professionals, Engineers, and Mathematicians (STEM workers) are fundamental inputs in scientific innovation and technological adoption, the main drivers of productivity growth in the U.S.”).

28
Jennifer Hunt, “Which Immigrants are Most Innovative and Entrepreneurial? Distinctions by Entry Visa,”
Journal of Labor Economics
Vol 29 (3): 417-457 (2011).

29
Jennifer Hunt and Marjolaine Gauthier-Loiselle, “How Much Does Immigration Boost Innovation?”
American Economic Journal: Macroeconomics
2: 31-56 (2010).

30

Id.

31

Id.

32
Greenstone and Looney,
supra
note 26, at 2-3.

33

See
Congressional Research Service, Economics and National Security: Issues and Implications for U.S. Policy 28, available at

https://www.fas.org/sgp/crs/natsec/R41589.pdf
[hereinafter Economics and National Security];
see also
The White House, National Security Strategy 16 (Feb. 2015), available at
https://www.whitehouse.gov/sites/default/files/docs/2015_national_security_strategy.pdf
(“Scientific discovery and technological innovation empower American leadership with a competitive edge that secures our military advantage, propels our economy, and improves the human condition.”) [hereinafter 2015 National Security Strategy]; The White House, National Security Strategy 29 (May 2010), available at
https://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf
(“America's long-term leadership depends on educating and producing future scientists and innovators.”).

34
The 2015 National Security Strategy concludes that “the American economy is an engine for global growth and a source of stability for the international system. In addition to being a key measure of power and influence in its own right, it underwrites our military strength and diplomatic influence. A strong economy, combined with a prominent U.S. presence in the global financial system, creates opportunities to advance our security.” 2015 National Security Strategy,
supra
note 33, at 15.

2. Increased Competition for International Students

DHS recognizes that the United States has long been a global leader in international education. The number of international students affiliated with U.S. colleges and universities grew by 72 percent between 1999 and 2013 to a total of 886,052.
35

However, although the overall number of international students increased over that period, the nation's share of such students decreased. In 2001, the United States received 28 percent of international students; by 2011 that share had decreased to 19 percent.
36

Countries such as Canada, the United Kingdom, New Zealand, Australia, Malaysia, Taiwan, and China are actively instituting new strategies to attract international students.
37

35
Pew Research Center, “Growth from Asia Drives Surge in U.S. Foreign Students” (June 18, 2015), available at
http://www.pewresearch.org/fact-tank/2015/06/18/growth-from-asia-drives-surge-in-u-s-foreign-students/
(citing Institute for International Education, Open Doors Data: International Students: Enrollment Trends, available at

http://www.iie.org/Research-and-Publications/Open-Doors/Data/International-Students/Enrollment-Trends/1948-2014
.

36
Organization for Economic Co-operation and Development (OECD) 2014, “Education at a Glance 2014: OECD Indicators,” OECD Publishing at
http://dx.doi.org/10.1787/eag-2014-en
or
http://www.oecd.org/edu/eag.htm
.

37
University World News Global Edition Issue 376, “Schools are the New Battleground for Foreign Students” (July 15, 2015), available at
http://www.universityworldnews.com/article.php?story=201507150915156
.

For example, Canada also recognizes that educational institutions need international students to compete in the “global race for research talent.”
38

In April, 2008, Canada modified its Post-Graduation Work Permit Program to allow international students who have graduated from a recognized Canadian post-secondary institution to stay and gain valuable post-graduate work experience for a period equal to the length of the student's study program, up to a maximum of three years, with no restrictions on type of employment.
39

This change resulted in a steady increase between 2003 and 2007 in the number of post-graduation work permits issued to international students, followed by a sharp increase of 64 percent from 2007 to 2008.
40

By 2014, the number of international students in the program was more than double its 2008 total.
41

In addition, Canada aims to double the number of international students in the country from 211,949 in 2014 to 450,000 by 2022.
42

38
Citizenship and Immigration Canada, “Evaluation of the International Student Program” 14 (July 2010) available at
http://www.cic.gc.ca/english/pdf/research-stats/2010-eval-isp-e.pdf
(citing Association of Universities and Colleges of Canada, Momentum: The 2008 report on university research and knowledge mobilization: A Primer: Driver 2: Global race for research talent, 3 (2008) [hereinafter Evaluation of the Int'l Student Program].

39
Citizenship and Immigration Canada, Study permits: Post Graduation Work Permit Program, available at
http://www.cic.gc.ca/english/resources/tools/temp/students/post-grad.asp
[hereinafter Canadian Study permits]. Similarly, Australia, now offers international students who graduate with a higher education degree from an Australian education provider, regardless of their field of study, a post-study work visa for up to four years, depending on the student's qualification. Students who complete a bachelor's degree may receive a two-year post study work visa, research graduates with a master's degree are eligible for a three-year work visa, and doctoral graduates are eligible for a four-year work visa.
See
Australian Department of Immigration and Border Protection, Application for a Temporary Graduate visa, available at
http://www.border.gov.au/FormsAndDocuments/Documents/1409.pdf
[hereinafter Australian Temporary Grad. visa].

40
Evaluation of the Int'l Student Program,
supra
note 38, at 9.

41
Citizenship and Immigration Canada, Quarterly Administrative Data Release, available at
http://www.cic.gc.ca/english/resources/statistics/data-release/2014-Q4/index.asp
.

42

See
Government of Canada, Quarterly Administrative Data Release (July 20, 2015), available at
http://www.cic.gc.ca/english/resources/statistics/data-release/2014-Q4/index.asp
; University World News Global Edition,
Schools are the New Battleground for Foreign Students,
July 15, 2015, Issue 376, available at
http://www.universityworldnews.com/article.php?story=201507150915156
.

In light of the United States' decreasing share of international students, and increased global efforts to attract them, DHS concludes that the United States must take additional steps to improve these students' educational experience (both academic and practical) to ensure that we do not continue to lose ground. This is particularly true for international STEM students, who have comprised a

significant portion of students in STEM degree programs in the United States, particularly at the graduate degree level.

The difference is particularly notable at the doctoral level, where international students earned 56.9 percent of all doctoral degrees in engineering; 52.5 percent of doctoral degrees in computer and information sciences; and approximately half the doctoral degrees in mathematics and statistics in the 2012-2013 academic year.
43

Recognizing that the international education programs for these students are increasingly competitive, DHS is committed to helping U.S. educational institutions contend with the expanded and diverse global opportunities for international study.

43
Pew Research Center, “Growth from Asia Drives Surge in U.S. Foreign Students” (June 18, 2015), available at
http://www.pewresearch.org/fact-tank/2015/06/18/growth-from-asia-drives-surge-in-u-s-foreign-students/
.

3. The Need To Improve the Existing STEM OPT Extension

With this rule, DHS also recognizes the need to strengthen the existing STEM OPT extension to enhance the integrity and educational benefit of the program in order to help maintain the nation's economic, scientific, and technological competitiveness. DHS is working to find new and innovative ways to encourage international STEM students to choose the United States as the destination for their studies. This rule, in addition to including a modified version of the STEM OPT extension from the 2008 IFR, increases the maximum training time period for STEM students, requires a formal training plan for each STEM OPT extension, and strengthens protections for U.S. workers. Providing an on-the-job educational experience through a U.S. employer qualified to develop and enhance skills through practical application has been DHS's primary guiding objective in crafting this rule.

Many of the elements of the 2015 NPRM were based on public comments on the 2008 IFR, which contained input from a range of stakeholders, including students and the broader academic community. The NPRM also incorporated recommendations from the Homeland Security Academic Advisory Committee.
44

DHS continues to find that the changes proposed by this rule to the existing STEM OPT extension would benefit both F-1 students and international study programs in the United States, while adding important protections.

44
The Homeland Security Academic Advisory Council provides advice and recommendations to the Secretary and senior leadership on matters related to homeland security and the academic community, including: student and recent graduate recruitment, international students, academic research and faculty exchanges, campus resilience, homeland security academic programs, and cybersecurity.
See
U.S. Department of Homeland Security, Homeland Security Academic Advisory Council Charter, available at
http://www.dhs.gov/publication/hsaac-charter
.

The changes will allow F-1 STEM students to gain valuable on-the-job training from qualified employers. Maintaining and enhancing practical training for STEM students improves their ability to absorb a full range of project-based skills and knowledge directly related to their study. The changes will also help the nation's colleges and universities remain globally competitive, including by improving their ability to attract international STEM students to study in the United States. As noted above, these students enrich the academic and cultural life of college and university campuses throughout the United States and make important contributions to the U.S. economy and academic sector. The changes will help strengthen the overall F-1 program in the face of growing international competition for the world's most promising international students.

Additionally, safeguards such as employer attestations, requiring employers to enroll in and remain in good standing with E-Verify, providing for DHS site visits, and requiring that STEM training opportunities provide commensurate terms and conditions to those provided to U.S. workers will help protect both such workers and STEM OPT students. Implementing the changes in this rule thus will more effectively help STEM OPT students achieve the objectives of their courses of study while also benefiting U.S. academic institutions and guarding against adverse impacts on U.S. workers.

IV. Discussion of Comments and Final Rule

As noted above, during the public comment period, 50,500 comments were submitted on the NPRM and related forms. Comments were submitted by a range of entities and individuals, including U.S. and international students, U.S. workers, schools and universities, professional associations, labor organizations, advocacy groups, businesses, and other interested persons. Many commenters provided concrete suggestions that DHS has evaluated and responded to in order to build upon the proposed rule and to better explain its provisions. Overall,
45

comments were primarily positive, but there were many criticisms as well.

45
In addition, DHS also received a number of comments that were outside the scope of the rulemaking. For instance, some commenters stated that DHS should not allow any foreign nationals to work in the United States. Other commenters recommended that DHS make changes to the H-1B visa classification. Another commenter stated that the United States should “send green cards to [STEM] Ph.D.s right away.” Other commenters recommended that DHS apply the proposed rule's requirements to F-1 nonimmigrant students engaged in pre-completion OPT or the initial 12-month period of post-completion OPT. Additionally, one commenter requested that DHS extend the period during which students may apply for post-completion OPT and related employment authorization. DHS did not propose any of these changes in the NPRM, and readers of the NPRM could not reasonably have anticipated that DHS would make such changes in this final rule. Accordingly, DHS has deemed these and similar comments outside the scope of this rulemaking, and has not discussed them further in this preamble.

A number of commenters expressed general opposition to the NPRM. For instance, some stated that the proposed rule would not serve the national interest because it would harm U.S. workers, especially recent graduates with STEM degrees. Commenters also suggested that there was insufficient demand for STEM workers in the U.S. labor market to accommodate STEM OPT students. Other commenters were concerned that STEM OPT students would send their wages back to their home countries. Based on these and other concerns, various commenters requested that DHS place a moratorium on practical training and related programs until, for instance, every qualified U.S. citizen has a job. Another commenter requested that STEM OPT be phased out entirely after the current participants finish their training.

On the whole, however, commenters largely expressed support for the proposed rule. Commenters stated that the NPRM would “make[] a number of important, thoughtful changes to improve and enhance the opportunities available to F-1 students with STEM degrees”; that the proposed rule struck a reasonable balance by distributing requirements among all who participate in STEM OPT, including international students, institutions of higher education, and employers; and that the proposed Mentoring and Training Plan requirement would improve the STEM OPT extension by clearly identifying the students' learning objectives and the employer's commitments.

DHS thanks the public for its extensive input during this process. In the discussion below, DHS summarizes and responds to all comments that were timely submitted on the NPRM.

A. Including a STEM OPT Extension Within the OPT Program

1. Description of Final Rule and Changes From NPRM

Consistent with the NPRM, this final rule provides for STEM OPT extensions as part of the OPT program under the F-1 nonimmigrant classification. This action will better ensure, among other important national interests, that the U.S. academic sector can remain globally competitive. Enabling extended practical training for qualifying students with experience in STEM fields is consistent with DHS's “Study in the States” initiative, announced after the 2008 IFR in September 2011, to encourage international students to study in the United States. That initiative particularly has focused on enhancing our nation's economic, scientific and technological competitiveness by finding new ways to encourage talented international students to become involved in expanded post-graduate opportunities in the United States. The initiative has taken various steps to improve the Nation's nonimmigrant student programs.
46

46

See
DHS, “Study in the States,”
http://studyinthestates.dhs.gov
.

The final rule enhances the ability of F-1 students to achieve the objectives of their courses of study while also benefiting the U.S. economy. More students will return home confident in their training and ready to begin a career in their field of study; others may seek to change status to other nonimmigrant classifications consistent with section 248 of the INA, 8 U.S.C. 1258, following a STEM OPT extension, thus furthering economic growth and cultural exchange in the United States.

Before discussing and responding to public input on the substantive terms of the STEM OPT extension program proposed in the 2015 NPRM, DHS first addresses comments providing input on whether STEM OPT extensions should be authorized at all. As discussed below, the STEM OPT extension rule is grounded in the long-standing recognition by DHS and its predecessor agency that (1) experiential learning and practical training are valuable parts of any post-secondary educational experience and (2) attracting and retaining international students is in the short- and long-term economic, cultural, and security interests of the United States. Thousands of comments expressed an opinion on one or both of these two points, either challenging or supporting the proposal to include a STEM OPT extension within the OPT program. A significant number of commenters discussed the taxation rules applicable to F-1 students; some asserted that no STEM OPT extension was appropriate as long as certain F-1 students remained exempt from certain payroll or employment taxes. Lastly, some commenters questioned the Department's legal authority to include a STEM OPT extension within the OPT program, while others maintained that a solid legal basis exists for such extensions. The final rule retains STEM OPT extensions as part of the OPT program and explains in detail the underpinnings of this policy by responding in full to the many policy-related comments received from the public.

2. Public Comments and Responses

i. Experiential Learning as Part of Completing a Full Course of Study

Numerous commenters submitted views regarding the proposition that experiential learning opportunities such as practical training can significantly enhance the knowledge and skills obtained by students during academic study, thus furthering their courses of study in the United States.

Comment.
DHS received hundreds of comments, mostly from students and universities, stating that experiential learning and practical training are key parts of university education. DHS also received comments challenging this premise. One commenter, for example, strongly disagreed “that the objective of the students' course of study includes the acquisition of knowledge through on-the-job `training.' ” Instead, this commenter stated that “the sole objective of the F-1 student's course of study is to obtain the desired degree and nothing more.” According to the commenter, “[o]nce that objective has been achieved, the purpose of the F-1 status has been fulfilled and the status should terminate.”

Many universities and higher education associations, however, made statements to the contrary. Twelve higher education associations—representing land-grant universities, research universities, human resource professionals at colleges and universities, registrars, graduate schools, international student advisors, and religious colleges and universities, among others—jointly filed a comment stating that “experiential learning is a key component of the educational experience.” These higher education associations stated that:

OPT allows students to take what they have learned in the classroom and apply “real world” experience to enhance learning and creativity while helping fuel the innovation that occurs both on and off campus. . . . Learning through experience is distinct from learning that takes place in the classroom. Experiential learning opportunities have become an integral part of U.S. higher education.

Universities individually made similar points, emphasizing the value of experiential learning. DHS received comments on this point from a range of public and private institutions of higher education. For example, one university stated that experiential learning opportunities are particularly critical in “STEM fields where hands on work supplements classroom education.” Another university stated that “experiential learning fosters the capacity for critical thinking and application of knowledge in complex or ambiguous situations.” Other university commenters stated that experiential learning “is a necessary component of a 21st century education, especially in the STEM fields.”

A national organization of graduate and professional students stated that offering a STEM OPT extension after bachelor's level studies allowed individuals to “identify research interests and develop skills” that they later can expand upon in their graduate studies when they focus on solving concrete problems. An organization representing international educators stated that the OPT program appropriately focuses on the critical part of an education that occurs in partnership with employers.

An organization that serves U.S. institutions engaged in international educational and cultural exchange stated that “extended OPT eligibility creates space for more meaningful interactions between international OPT participants and their U.S. host employers.” Other comments stated that a recent membership survey found that 89 percent of responding employers found that OPT participants “work in conjunction with U.S. workers in a way that promotes career development for everyone involved.” A business association stated that “practical training allows foreign students in technical fields to maximize the return on their investment in education.”

Response.
The Department agrees with the many U.S. universities and educational- and international-exchange organizations that provided comments stating that STEM OPT extensions would enhance the educational benefit provided to eligible students through practical training. DHS agrees that practical training is an accepted and important part of international post-secondary education.

Comment.
One commenter asserted that OPT had “limited (if any) education[al] value” while noting that he “was unable to find any comment where someone described how the OPT program is related to a course of study or is a means to achieve specific educational goals.” Many comments, however, described how practical training is related to a course of study and serves as a means to achieve educational goals. In addition to the comments described above from academic associations and educational institutions, the Department received many comments from F-1 students describing the educational benefits that the OPT program provides both to students and to academic programs. Examples of such comments include the following:

• “OPT allows international students the opportunity to engage in practical application of skills learned in academic programs.”

• “[A]s an extension of college education, OPT extension is a great way to apply what's learnt in class to our real industry.”

• “This experiential learning will allow me to integrate knowledge and theory learned in the classroom with practical application and skills development in a professional setting.”

• “The proposal to reinstitute the STEM extension will provide valuable hands-on, educational experience in which STEM graduates gain real-world immersion into a chosen industry.”

• “The new rule will allow me to meet my planned learning goals and allow for active reflection on [what] I am accomplishing throughout the experience.”

Response.
Consistent with many of the comments received from academic associations, educational institutions, and F-1 students, DHS agrees that the OPT program enriches and augments a student's educational experience by providing the ability for students to apply in professional settings the theoretical principles they learned in academic settings. By promoting the ability of students to experience first-hand the connection between theory in a course of study and practical application, including by applying abstract concepts in attempts to solve real-world problems, the OPT program enhances their educational experiences. A well-developed capacity to work with such conceptualizations in the use of advanced technology, for example, is critical in science-based professions. Practical training programs related to STEM fields also build competence in active problem solving and experimentation, critical complements to academic learning in STEM fields. As many commenters attested, practical training is an important avenue for enhancing one's educational experience, particularly for STEM students.

Comment.
A research organization contested the educational basis for providing two-year STEM OPT extensions in part by noting that the ACT testing organization (previously known as American College Testing) has published a “world of work map” stating that “a bachelor's degree is sufficient for electrical engineering jobs” without discussing any extended period of practical training. The commenter also pointed out that the Department of Labor's Occupational Outlook Handbook states that in order to become an electrical engineer one “must have a bachelor's degree” and that “[e]mployers also value practical experience, so participation in cooperative engineering programs, in which students earn academic credit for structured work experience, is valuable as well.” According to the commenter, the standard OPT duration of 12 months is more than sufficient to become a fully trained engineer, as that is the duration of typical cooperative engineering programs.

Response.
DHS rejects the notion that ACT's “world of work map,” a career planning tool for high school students, attempts to describe anything other than the educational degree level typically required for entry into an occupation. The ACT's career planning map takes no position on whether and to what extent on-the-job training and experiences help launch a career, enhance an educational program, or help facilitate mastery of material learned in the classroom. The Occupational Outlook Handbook of the Department of Labor similarly does not assess the relevancy of experiential learning theory or the extent to which on-the-job training complements classroom learning as part of post-secondary education. Instead, the Occupational Outlook Handbook identifies the typical level of degree or education that most workers need to enter the electrical engineering occupation and the extent to which additional training is needed (post-employment) to attain competency in the skills needed in the occupation.
47

The fact that cooperative education programs in engineering may typically focus on the equivalent of one year of employment experience for academic credit is not determinative with regard to the type or length of experiential learning that can be considered part of a full course of study. Cooperative education is one type of experiential learning, but not the only type used by the nation's higher education community.
48

47
BLS, Occupational Outlook Handbook, at “Occupation Finder” (Dec. 17, 2015), available at
http://www.bls.gov/ooh/occupation-finder.htm?pay=&education=&training=&newjobs=&growth=&submit=GO
(see information defining “entry-level education” and “on-the-job training” for the Occupation Finder).

48
The commenter questioning the educational basis of the STEM OPT extension referred to the co-op program at the Rochester Institute of Technology (RIT) as a useful example, since it is one of the nation's largest. RIT itself, though, recognizes that co-ops are just one type of experiential learning.
See generally
RIT, Cooperative Education and Experiential Learning,
https://www.rit.edu/overview/cooperative-education-and-experiential-learning
.

Comment.
A commenter stated that DHS had not “provided any evidence . . . indicating that” nonimmigrant students lack access to similar opportunities in their home countries.

Response.
The United States hosts F-1 students from all over the world. Although DHS acknowledges that some students will have access to similar training opportunities in their home countries, DHS believes it is self-evident that many will not. In any case, the purpose of the rule is not simply to address a gap in training opportunities for F-1 students in their home countries but to help students develop their knowledge and skills through practical application, and to ensure that our nation's colleges and universities remain globally competitive in attracting international STEM students to study and lawfully remain in the United States.

Comment.
Some commenters asked DHS to reconsider the requirement that students be engaged in STEM OPT solely related to their fields of study.

Response.
The Department has historically required the OPT experience to be directly related to the student's major fields of study because, at its core, such work-based learning is a continuation of the student's program of study. Indeed, the purpose of OPT is to better position students to begin careers in their fields of study by providing ways for them to supplement and enhance the knowledge they gained in their academic studies through application of that knowledge in work settings. Allowing such students to engage in OPT in areas unrelated to their fields of study would be inconsistent with the purpose of OPT.

OPT's required nexus to the field of study also minimizes potential abuse or exploitation of international students by those seeking to impermissibly employ them in unskilled labor or other unauthorized work in the United States. Moreover, this requirement is consistent

with current regulations applicable to OPT more broadly; under these regulations, OPT must be directly related to the student's major area of study.
See
8 CFR 214.2(f)(10)(ii)(A). For these reasons, DHS has determined that it will not permit a student to engage in STEM OPT in an area not related to his or her field of study.

ii. International Students and the National Interest

A variety of comments addressed whether the STEM OPT extension benefited STEM OPT students, U.S. institutions of higher education, and the overall national interest. Some commenters stated that the STEM OPT extension would provide such benefits and supported the proposed rule for these or related reasons; others stated that the proposed rule would negatively impact the employment options of U.S. STEM graduates and workers. The Department had carefully considered these issues in developing the NPRM, and has further evaluated these issues as raised in the public comments. The Department's consideration of these issues is reflected in the discussion that immediately follows and throughout this preamble.

Comment.
One commenter stated that a recent study “shows that American students who actively interact with their international classmates are more likely to enhance their own self-confidence, leadership and quantitative skills.”
49

Another commenter, however, stated that in explaining the STEM OPT extension DHS had cited “no evidence of a measurable `academic benefit' other than increased income for U.S. institutions of higher education.” This commenter stated that any such increased income would be “irrelevant to the OPT program, where F-1 students do NOT pay tuition, at premium or standard rates, to the academic institution from which they received a STEM degree.” The commenter also stated that STEM OPT employment does not and cannot provide “enhance[ed] academic discourse and cultural exchange on campuses,” and that there is an internal conflict in the dual goal of bringing “knowledge and skills” to the U.S. economy through the STEM OPT extension, and helping STEM OPT students acquire knowledge and skills.

49

See generally
Jiali Luo and David Jamieson-Drake, “Examining the Educational Benefits of Interacting with International Students” at 96 (June 2013),
available at

https://jistudents.files.wordpress.com/2013/05/2013-volume-3-number-3-journal-of-international-students-published-in-june-1-2013.pdf
.

A university commenter, however, suggested that DHS should consider it a priority to finalize the STEM OPT extension rule in a way that ensures universities remain internationally competitive. Representative of many comments from higher education, another university commenter strongly supported the STEM OPT extension within the OPT program. The commenter stated that “if the United States is to maintain our economic, educational, and scientific competitiveness then it must continue to make itself attractive to the best talent worldwide.” Another commenter, who identified as an F-1 student, noted that many people from his home country have degrees earned abroad, and that a “U.S.-university degree alone is not valued as [highly] as it was 10 or 20 years ago.” This commenter stated that “experience on a complete project” will provide him an advantage over students who studied in countries that don't provide similar kinds of training opportunities.

Response.
The STEM OPT extension program is designed to address the very point raised by the final commenter,
i.e.,
that the program will improve and expand the educational and training opportunities available to international students and maintain and improve the competitiveness of American institutions of higher education. As explained in the NPRM,
see
80 FR 63383-84, there is increasing international competition for attracting top international students, and other countries, including Canada and Australia, currently have programs similar to the STEM OPT extension. The STEM OPT extension serves to maintain the United States' global competitiveness in these rapidly evolving fields. As discussed in the NPRM,
see, e.g.,
80 FR 63382-84, this provides benefits to the U.S. economy that are independent of any need (or lack thereof) of STEM workers in the United States.

As noted in the NPRM, in light of increased global efforts to recruit international students, DHS believes that the United States must take additional steps to improve available educational experiences (both academic and practical) to ensure that the United States remains competitive for such students. Such steps benefit the U.S. academic sector by contributing to its economic support and increasing academic diversity. This is particularly true with regard to international STEM students, who have comprised a significant portion of students in STEM degree programs in the United States, particularly at the graduate degree level. While it is of course true that, as a commenter noted, OPT students do not pay tuition during their practical training, it is reasonable to assume the increased attractiveness of U.S. colleges and universities due to the availability of OPT will benefit the U.S. academic sector. DHS's conclusions about the benefit of the STEM OPT extension to the F-1 student program and U.S. educational institutions found broad support in the comments submitted by educational institutions themselves.

Comment.
A significant number of commenters discussed whether STEM OPT participants positively or negatively impacted U.S. workers and U.S. students, with differing views on whether nonimmigrant STEM professionals complemented or replaced U.S. STEM professionals. Some commenters cited their personal experience as STEM workers, or the experience of others they know, to demonstrate the existence of either a labor surplus or a labor shortage. Many others cited and attached reports and studies to show there was either a labor surplus or a labor shortage.

A number of commenters stated that allowing employers to hire F-1 students on a STEM OPT extension would disadvantage U.S. citizens and lawful permanent residents. Some of these commenters, as well as other commenters, provided facts and figures suggesting there was not a labor shortage of STEM workers. For example, some commenters stated that wages have not increased, as would be expected during a shortage, and some of these commenters cited to a report from the Economic Policy Institute that found that wages in the information technology sector “have remained flat, with real wages hovering around their late 1990s levels.”
50

Some commenters provided data that contradicted these claims. For example, one commenter stated that STEM workers receive a persistent wage premium and that wages for engineers are rising relative to other occupations.

50
Hal Salzman, Daniel Kuehn, Lindsay Lowell, Guestworkers in the High-Skill U.S. Labor Market: An Analysis of Supply, Employment, and Wages 2 (Economic Policy Institute, Apr. 2013) available at
http://www.epi.org/publication/bp359-guestworkers-high-skill-labor-market-analysis/
.

Commenters cited data and reports on both sides of the question of whether there were sufficient numbers of qualified U.S. workers available to fill open STEM jobs in the U.S. economy. One commenter stated that there were over 102,000 unemployed engineers. Another commenter stated that there were two million unemployed Americans with STEM degrees. A number of commenters, however, stated that even with millions of unemployed

Americans, “the manufacturing sector cannot find people with the skills to take nearly 600,000 unfilled jobs, according to a study last fall by the Manufacturing Institute and Deloitte.”
51

One commenter stated that “unemployment rates in key STEM occupations are dramatically lower” than the overall unemployment rate in the United States, citing to 2.8 percent unemployment in “computer and mathematical occupations” and 2.2 percent unemployment in “architecture and engineering occupations,” among others.

51
See generally Manufacturing Institute et al, “The Skills Gap in Manufacturing: 2015 and Beyond” (Mar. 2015), available at
http://www.themanufacturinginstitute.org/Research/Skills-Gap-in-Manufacturing/Skills-Gap-in-Manufacturing.aspx
.

Response.
DHS recognizes, as explained by the National Science Foundation (NSF), that close study reveals that there is no straightforward answer on whether the United States has a surplus or shortage of STEM workers.
52

As the NSF summarizes:

52
NSF, Revisiting the STEM Workforce: A Companion to Science and Engineering Indicators 2014, 9 (Feb. 4, 2015), available at
http://www.nsf.gov/pubs/2015/nsb201510/nsb201510.pdf
.

Some analysts contend that the United States has or will soon face a shortage of STEM workers. Some point to labor market signals such as high wages and the fact that STEM vacancies are advertised for more than twice the median number of days compared to non-STEM jobs. Other analysts note that the shortage of STEM workers is a byproduct of the ability of STEM-capable workers to “divert” into other high-skill occupations that offer better working conditions or pay. Relatedly, some say even if the supply were to increase, the United States might still have a STEM worker shortage because an abundance of high-skill workers helps drive innovation and competitiveness and this might create its own demand.

Those analysts who contend the United States does not have a shortage of STEM workers see a different picture. They suggest that the total number of STEM degree holders in the United States exceeds the number of STEM jobs, and that market signals that would indicate a shortage, such as wage increases, have not systematically materialized. Analysts also raise concerns about labor market dynamics in academia—where a decreasing share of doctoral degree holders employed in the academic sector are tenured—and in industry—where there are reports that newly-minted degree holders and foreign “guestworkers” on temporary visas (
e.g.,
H-1B, L-1) are displacing incumbent workers. A few of these analysts go as far as to argue that firms claim shortages and mismatches in the hope of lowering compensation and training costs.

Close study of the surplus-shortage question reveals that there is no straightforward “yes” or “no” answer to whether the United States has a surplus or shortage of STEM workers. The answer is always “it depends.” It depends on which segment of the workforce is being discussed (
e.g.,
sub-baccalaureates, Ph.D.s, biomedical scientists, computer programmers, petroleum engineers) and where (
e.g.,
rural, metropolitan, “high-technology corridors”). It also depends on whether “enough” or “not enough STEM workers” is being understood in terms of the quantity of workers; the quality of workers in terms of education or job training; racial, ethnic or gender diversity, or some combination of these considerations.
53

53

Id.

DHS credits NSF's views on this matter. Although DHS acknowledges that commenters submitted a range of data related to the current state of the overall U.S. STEM labor market (and DHS discusses much of this data in more detail below), DHS does not rely on this data to finalize the rule. Instead, this rule is based on the widely accepted proposition that educational and cultural exchange, a strong post-secondary education system, and a focus on STEM innovation are, on the whole, positive contributors to the U.S. economy and U.S. workers and in the overall national interest. As noted above, these principles, combined with the labor market protections and other measures included in this rule, generally provide the basis for the Department's action.

Comment.
Many commenters stated that data released by the U.S. Census Bureau in 2014 showed that three-quarters of American STEM graduates were not working in STEM fields. The implication was that such data indicated no need for the STEM OPT extension program and that such a program would not benefit the national interest.

Response.
The 2014 Census Bureau data cited by commenters did identify that only about one-quarter of bachelor's level graduates with STEM degrees are employed in STEM fields.
54

The Census Bureau, however, made no accounting of STEM graduates that use the technical skills developed in their STEM courses in high-skilled jobs in medicine, law, business, academia, or management. For example, for purposes of the Census Bureau study, an individual with a chemistry degree who becomes a physician is considered a STEM graduate not employed in a STEM field.
55

The cited 2014 Census Bureau figures are skewed in this regard. A 2013 analysis from the Census Bureau found that more than one out of five U.S. STEM graduates who were not employed in a core STEM field were working in a managerial or business position utilizing quantitative skills developed through their STEM studies and often directly related to their degree; that more than one in eight STEM graduates were working in healthcare (including 594,000 who were working as physicians); and that another 522,000 were considered outside of STEM, but working in U.S. colleges and universities, where they were teaching in the field of their STEM major and educating the next generation of STEM workers.
56

In short, as pointed out by the U.S. Congress Joint Economic Committee, “differences in definitions across sources can complicate comparisons or analyses of trends in STEM.”
57

54
U.S. Census Bureau, “Where do College Graduates Work: A Special Focus on Science, Technology, Engineering and Math” (July 2014), available at
http://www.census.gov/dataviz/visualizations/stem/stem-html/
.

55
The practice of medicine commonly is not considered to be a STEM field. NSF, for example, considers as its mission the support of all fields of science and engineering except for the medical sciences. See NSF Mission Statement, available at
http://www.nsf.gov/about/what.jsp
.
See also, e.g.,
U.S. Congress Joint Economic Committee, STEM Education: Preparing for the Jobs of the Future 1 (April 2012) (explaining that the medical sciences are not a STEM field), available at
http://www.jec.senate.gov/public/index.cfm/democrats/2012/4/stem-education-preparing-jobs-of-the-future
.

56
Liana Christin Landivar, U.S. Census Bureau, The Relationship between Science and Engineering Education and Employment in STEM Occupations (Sept. 2013), available at
http://www.census.gov/prod/2013pubs/acs-23.pdf?cssp=SERP
.

57

See
U.S. Congress Joint Economic Committee, STEM Education: Preparing for the Jobs of the Future 1 (April 2012) (explaining that the medical sciences are not a STEM field), available at
http://www.jec.senate.gov/public/index.cfm/democrats/2012/4/stem-education-preparing-jobs-of-the-future
;
see also
David A. Koonce, Jie Zhou, Cynthia D. Anderson, American Society for Engineering Education, “What is STEM?” (2011) available at
http://www.asee.org/public/conferences/1/papers/289/download
(explaining that “research institutes, government organizations and occupational groups, as well as different groups involved in STEM, use different definitions of STEM, based on their perspectives”).

DHS disagrees that the U.S. Census data point to an across-the-board shortage of degree-related employment opportunities for U.S. STEM graduates as the disparate definitions make that conclusion unlikely. DHS believes that many of the concerns identified about the proposed rule are overstated or incomplete because of the nature of available data and reporting.

Comment.
A few commenters stated that DHS failed to consider the full range of research related to the proposed rule's underlying policies. One such commenter directed the Department's attention to two bibliographies publicly available on the Internet, and which were attached to the comment, because the commenter believed the sources

cited in the NPRM were “funded by employers of cheap alien workers to justify the rule.” One of these bibliographies identified 19 books, articles, and reports, most of which discuss the H-1B and L-1 visa programs. The second was an annotated bibliography assembled by a professor providing an assessment and criticism of four of the professor's articles and 23 other sources, principally related to H-1B work visas and employer-sponsored green cards.

Response.
DHS did not rely on sources of information funded by employers of “cheap” foreign labor to develop or justify the proposed rule. Among other sources, DHS cited the following sources: the National Bureau of Economic Research, NSF, the Journal of Labor Economics, the Congressional Research Service, the Brookings Institution, the American Economic Journal, the Pew Research Center, the Journal of International Students, the Organization for Economic Co-operation and Development, University World News, Citizenship and Immigration Canada (a Canadian government agency), the Department of Immigration and Border Protection of Australia (an Australian government agency), and the Homeland Security Academic Advisory Committee (a discretionary committee of the U.S. government established under the Federal Advisory Committee Act).

Moreover, the commenter did not identify any specific findings in the sources cited in the bibliographies that would support a change to the Department's proposal. Many of the sources cited in the bibliography involved the H-1B and L-1 nonimmigrant visa programs, as well as employment-sponsored immigrant visa programs, rather than OPT. Significantly, although the organization that prepared the H-1B and L-1 bibliography cited by the commenter also submitted a separate, detailed comment on the NPRM, the organization did not cite its bibliography or most of the sources contained therein as part of its submission. And in the course of reviewing the extensive bibliographies presented, the Department noted that at least one of the sources, which addressed permanent immigration and not OPT, concluded that “international students studying in host country postsecondary institutions are particularly valued because they improve higher education, subsidize domestic students, contribute to national economies and, if they qualify, make valuable permanent residents because of their youth, occupational qualifications, language skills, and familiarity with host country customs and institutions.”
58

58
Ray Marshall, Value-Added Immigration 187 (Economic Policy Institute, 2011).

Comment.
One commenter stated that the NPRM's references to U.S. patent rates for foreign-born individuals could not support the proposed rule because “no nationality data for inventors is associated with patents, so studies linking rates of patenting to immigration policy are inherently bogus.” Another commenter stated that although the NPRM cites publications by economist Dr. Jennifer Hunt for several assertions about higher rates of patenting and innovation by foreign-born researchers in the United States, the NPRM did not mention a report published by the Economic Policy Institute (EPI) (a research organization) “directly challenging [those] findings.” The commenter questioned sources cited in the NPRM regarding patent rates for foreign-born workers in the United States.

Response.
DHS disagrees with the statement that “no nationality data on inventors is associated with patents.” One data source for citizenship and nationality data for U.S. patents is the Patent Application Information Retrieval Web site maintained by the U.S. Patent and Trademark Office.
59

When applying for a patent, each listed inventor submits an oath or power of attorney form on which they must indicate citizenship. Other researchers have analyzed data from the Census Bureau, including the National Survey of College Graduates and the Integrated Public Use Microdata Series for the United States, in concert with patent information from the U.S. Patent and Trademark Office, to source citizenship and nationality figures for U.S. patents.
60

59
U.S. Patent and Trademark Office, Patent Application Information Retrieval
http://portal.uspto.gov/pair/PublicPair
. See also, e.g.,
Partnership for a New American Economy “Patent Pending: How Immigrants are Reinventing the American Economy” at 23 n. 2 (June 2012).

60

See, e.g.,
Jennifer Hunt et al,
supra
notes 28-29, in the appendices of the cited articles.

With respect to the studies by Dr. Hunt, DHS notes that the NPRM cited those studies in support of the general proposition that STEM workers “are fundamental inputs in scientific innovation and technological adoption, critical drivers of productivity growth in the United States.” 80 FR 63383. The EPI study did not question this proposition. Rather, the EPI study examined a narrow band of STEM fields to show that “immigrant workers, especially those who first came to the United States as international students, are in general of no higher talent than the Americans, as measured by salary, patent filings, dissertation awards, and quality of academic program.”
61

Specifically, the EPI finding is focused on whether foreign-born students who earned computer science and electrical engineering degrees in the United States file patent applications at higher levels than U.S.-born students earning the same degrees. For electrical engineering, the analysis showed that patenting activity of U.S. and foreign-born students was about the same, while for computer science the analysis showed that foreign-born computer science students apply for somewhat fewer patents than do their American peers.

61
Norman Matloff, “Are Foreign Students the `Best and Brightest'?” 17 (Economic Policy Institute, Feb 2013), available at
http://epi.org/publication/bp356-foreign-students-best-brightest-immigration-policy/
.

The EPI paper, however, acknowledges that the Hunt studies cited in the NPRM cast a much broader net, encompassing a myriad of science and engineering fields. The Hunt papers considered the impact of foreign-born workers employed in the United States in myriad visa classifications and fields of study, and was not focused solely on F-1 students or STEM OPT students (nor to just Computer Science and Electrical Engineering research activity). As explained in the Hunt papers, there is support for the proposition that foreign-born scientists and engineers achieve higher rates of U.S. patent filings. The Department continues to believe such patent rates support the conclusion that the STEM OPT extension is in the national interest.

Comment.
Some commenters stated that the best interests of U.S. workers and students were not being considered by DHS. Some of these commenters, as well as others, also stated that the STEM OPT extension should exist only if there was a documented STEM labor shortage. Some commenters stated that the proposed STEM OPT extension would be harmful to U.S. workers and students.

A commenting employer stated that while it prioritized U.S. worker hiring, it also hired foreign-born students that it recruited on U.S. campuses “given the talent pool graduating from U.S. Ph.D. and M.S. STEM programs.” The employer also stated: “we spend millions of dollars annually above and beyond what we have to pay to hire U.S. workers, merely to employ the talent required to successfully run our business.” Another commenter stated that “it makes no sense for the United States to educate and train foreign

students in the STEM fields and then drive them away with obsolete immigration policies.”

Response.
The number of international STEM graduates in the United States on STEM OPT extensions, as of September 16, 2015, was approximately 34,000, which, according to estimates of the overall U.S. STEM labor market from the U.S. Department of Commerce and the U.S. Bureau of Labor Statistics (BLS), represents a possible range of 0.19 percent
62

to 0.45 percent of the overall U.S. STEM job market.
63

For that reason, and in light of the worker protections included in this rule, the Department sees no reason to eliminate the STEM OPT extension altogether in response to concerns about impacts on U.S. workers. DHS instead seeks to balance the interests of stakeholders by both ensuring the availability of a STEM OPT extension program while strengthening program oversight and worker protections. The rule strengthens the integrity of the STEM OPT extension by requiring participants in the extension to carefully consider and document the relationship between the STEM OPT opportunity and the academic degree. The rule also adds requirements relating to supervision and direction of STEM OPT students in such jobs to better ensure the goals of the program are met. The rule also adds wage and other protections for STEM OPT students and U.S. workers.

62
U.S. Bureau of Labor Statistics Detailed 2010 Standard Occupation Classification (SOC) occupations in STEM from an August 2012 SOC Policy Committee recommendation to OMB,
http://www.bls.gov/soc/Attachment_C_STEM.pdf
. There are 184 occupations in STEM included in this list. When matched to the corresponding employment data in the BLS Occupational Employment and Wages, May 2014, the total employment of STEM occupations is approximately 17 million.

63
U.S. Department of Commerce, Economic and Statistics Administration, David Langdon et al., “STEM: Good Jobs Now and for the Future” (1), July 2011, available at
http://www.esa.doc.gov/sites/default/files/stemfinalyjuly14_1.pdf
(“In 2010, there were 7.6 million STEM workers in the United States.”). This STEM employment estimate is based on a narrower range of occupations.

Comment.
Numerous commenters repeated certain selected statements or figures on job creation or job loss related to international students in the United States. Hundreds of comments stated that 340,000 U.S. jobs are created or supported each year by international students studying in the United States, citing figures from an international student economic value tool developed by NAFSA. A few hundred comments instead posited that 430,000 U.S. workers lost jobs over a recent five-year period because of international students, as suggested by an analysis by one group. More than a dozen comments repeated the finding from an economist's study published by the American Enterprise Institute, in conjunction with the Partnership for New American Economy, that about 2.6 jobs for Americans are created for each foreign-born student who earns an advanced degree in the United States and then works in a STEM field.

Response.
This rule neither asserts nor relies on a quantified, direct relationship between job creation and the STEM OPT extension. At what rate such job creation occurs is unsettled in the peer-reviewed literature. To the Department's awareness, job loss rates tied solely to STEM OPT students have not been documented in peer-reviewed literature. The figures cited in the comments summarized above also do not relate solely to STEM OPT students.

Comment.
A commenter stated that although the proposed rule discussed the economic benefits of international students at length, DHS had not cited any estimate of the number of U.S. workers who were unable to obtain employment because a position was filled by a STEM OPT student or the number of U.S. workers otherwise adversely affected by the proposed rule.

Response.
DHS acknowledges that this rule includes neither a quantified estimate of potential negative impacts to individual U.S. workers nor a quantified estimate of specific benefits to U.S. educational institutions or the overall economy. Instead, the rule is based on the widely accepted proposition that educational and cultural exchange, a strong and competitive post-secondary education system, and a focus on STEM innovation are on the whole positive contributors to the U.S. economy and U.S. workers, and are in the national interest. A significant number of comments agreed; many observed that STEM students have contributed significantly to the U.S. economy. As noted above, these principles, combined with the labor market protections and other measures included in this rule, generally provide the basis for the Department's action.

Comment.
Some commenters stated that DHS had only considered studies supporting its conclusions and did not sufficiently review information that contradicted the sources cited by DHS. One commenter suggested that DHS “go back to the drawing board and review the full range of related information,” including the book “Falling Behind,” which questions whether the United States is falling behind in the global race for scientific and engineering talent.

By contrast, one commenter stated that “any change in quality of living is dependent on highly skilled STEM workers who are fundamental inputs in scientific innovation and technological adoption.” Other commenters stated that “STEM students have contributed immensely to the U.S. economy with their skills and innovation” and that because “the U.S. STEM industry is at the forefront of technology in the world, international students come here to get the exposure and learn.”

Some commenters flagged disagreement among economists with some of the findings included in a study published by the National Bureau of Economic Research (NBER) that extrapolates from the fundamental point for which it was cited by DHS.
64

With respect to that study, some commenters criticized its conclusions, and some criticized the fact that it had not been peer-reviewed. Because the study had received some criticism, commenters asked DHS to defend its citation to it.

64
Giovanni Peri, Kevin Shih, Chad Sparber, National Bureau of Economic Research, Foreign STEM Workers and Native Wages and Employment in U.S. Cities (May 2014), available at
http://www.nber.org/papers/w20093
.

Response.
DHS has carefully examined all of the commenters' views regarding the reasons provided for the proposed rule and the sources relied upon by DHS, and the Department believes adequate data and information has been provided in support of the rule. As noted throughout this preamble, DHS has reviewed studies submitted by commenters and finds that the basic approach in this rule appropriately balances the goals of protecting American workers and promoting American academic and economic competitiveness by attracting top quality international STEM students.

With regard to the citation to the NBER study, the reference in the 2015 NPRM was for the general proposition that STEM workers are fundamental inputs in scientific innovation and technological adoption, and therefore critical drivers of productivity growth in the United States.
65

The NSF, among many others, has reached the same conclusion. Created by Congress in 1950, the NSF began publishing an annual report in 1955 regarding the condition of the science and engineering workforce, long before the term “STEM”

was coined. According to the 2015 annual report, “[t]his workforce is of particular interest to the Nation because of its central role in fostering innovation, economic competitiveness, and national security.”
66

65

Id.
The article starts by observing that “Scientists, Technology professionals, Engineers, and Mathematicians (STEM workers) are fundamental inputs in scientific innovation and technological adoption, the main drivers of productivity growth in the U.S.” and was cited as a recent example of this premise in footnote 24 in the NPRM. 80 FR at 63383.

66
NSF, Revisiting the STEM Workforce: A Companion to Science and Engineering Indicators 2014, 5 (Feb. 4, 2015), available at
http://www.nsf.gov/pubs/2015/nsb201510/nsb201510.pdf
.

Comment.
A commenter requested that DHS annually publish data showing trends related to the impact of F-1 nonimmigrant students on labor markets in the United States. Another commenter stated that in order to improve oversight and understanding of our legal immigration system, relevant agencies should publish timely online information for each nonimmigrant visa category and subcategory, including for F-1 nonimmigrant students with OPT. This commenter stated that the public disclosure should include the underlying raw data gathered from the proposed Mentoring and Training Plan and other relevant forms as to the gender, age, country of origin, level of training, field of training, institution(s) of higher education, job title, wages, employer, and work location for “all OPT visa holders.” According to the commenter, this disclosure would be a “critical tool to empower advocates to ensure fair treatment and high standards within these visa programs.” Multiple commenters stated that although they lacked full information, the collection and release of data on all nonimmigrant visa categories was needed as a tool to help curtail fraud and abuse in employment visa categories.

Response.
To the extent permissible under existing law (including under the Privacy Act and related authority), relevant information related to the STEM OPT extension program may be available through the Freedom of Information Act (FOIA) process. A DHS effort to provide data and a program evaluation of all nonimmigrant visa categories is not within the scope of the proposed rule and is not required by any current statute or regulation.

Comment.
One commenter stated that “[t]he NPRM is procedurally and substantively arbitrary and capricious” because “DHS has entirely failed to provide a reasoned explanation of why its published policy rationale for the proposed rule has so fundamentally chan

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-04828. Public record. Not legal advice.