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BRT Comments on DHS STEM Rule

Business Roundtable Comments on
“Improving and Expanding Training Opportunities for F–1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F–1 Students” Proposed Rule Department of Homeland Security Docket No. ICEB-2015-0002


Business Roundtable is an association of more than 200 chief executive officers of leading U.S. companies working to promote sound public policy and a thriving U.S. economy. Business Roundtable member companies produce $7 trillion in annual revenues; employ nearly 16 million people; have a combined stock market capitalization of $7.9 trillion; invest $129 billion annually in research and development; pay more than $222 billion in dividends to shareholders; and generate more than $495 billion in sales for small and medium-sized businesses annually.
Business Roundtable companies also make nearly $8 billion a year in charitable contributions.

Business Roundtable appreciates the opportunity to comment on the Department of Homeland Security’s (DHS) proposed regulation, “Improving and Expanding Training Opportunities for F– 1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F–1 Students.”


Business Roundtable supports immigration policies that promote a healthy economy – accelerating growth, encouraging hiring and creating American jobs. Business Roundtable has conducted extensive research and released three in-depth reports that, respectively, examine immigrants’ contributions to the American economy, compare U.S. immigration policies to those of other countries and propose realistic solutions for fixing the country’s immigration system.

Business Roundtable also recently responded to the Request for Information that U.S. Citizenship and Immigration Services (USCIS) issued in January 2015 pursuant to President Obama’s November 21, 2014, Presidential Memorandum on modernizing and streamlining the U.S. immigrant and nonimmigrant visa system for the 21st century.

The economic benefits that accompany sensible immigration reform are substantial and well documented. For example:

  • The Bipartisan Policy Center estimates that reform would increase gross domestic product (GDP) by 4.8 percent over 20 years relative to the status quo, while the Congressional Budget Office estimates that reform would boost GDP by 5.4 percent by 2033 and add 9 million workers to the labor force.
  • Immigrants are nearly 50 percent more likely to start a business than native-born workers, and immigrants or their children founded more than 40 percent of U.S. Fortune 500 companies.
  • Immigrants are responsible for more than 25 percent of new businesses in seven of the eight fastest-growing sectors of the economy.

Due to structural problems with the current immigration system, it is imperative for Congress to take action to reform our immigration system. Preserving and improving our country’s system of retaining foreign students is an important administrative action, but it is no replacement for immigration legislation that addresses the core structural problems with the current immigration system. Business Roundtable will therefore continue to encourage Congress to fix America’s broken immigration system and pass laws that will help keep America secure and support a healthier economy.


International students make vital contributions not just to the U.S. universities where they study, but also to their communities and to the larger American economy. The Association of International Educators (NAFSA) has praised international students’ ability to build bridges between Americans and other nationalities, bring global perspectives to their U.S. educational institutions, support innovation in the United States through science and engineering coursework and support campus programming and services through their tuition payments. NAFSA determined that international students and their families created or supported 340,000 U.S. jobs and contributed $26.8 billion to the U.S. economy during the 2013-2014 academic year.  The Brookings Institution found that foreign students represent a large source of export earnings for U.S. metropolitan economies, primarily as a result of paying out-of-state tuition. The Brookings report estimated that from 2008 to 2012, foreign students pursuing bachelor’s, master’s and doctoral degrees paid about $35 billion in tuition and living expenses in the 118 metropolitan areas with the most foreign students. Although the highest number of incoming foreign students gravitate to large U.S. metropolitan areas such as New York, Los Angeles and San Francisco, the report noted that smaller metro areas in the middle of the United States receive the greatest number of foreign students relative to their total student population. These areas would benefit significantly from increased retention of foreign students, as the report noted that 45 percent of graduates extend their visas to work in the same metropolitan area as the college or university where they studied.


Today, students routinely cross international borders to pursue courses of study. To compete in the race to access the best and brightest talent from around the world, countries and their academic institutions recognize that attracting and retaining international students is critical. In the 2013-2014 academic year, the number of international students worldwide reached approximately 4.5 million. The United States has traditionally been a popular destination for students, and Immigration and Customs Enforcement (ICE) data indicate that as of August 2015, 1.05 million foreign students were present in the United States on F or M visas, with 405,314 of these students studying in science, technology, engineering and mathematics (STEM) fields.

However, as other countries intensify their efforts to attract international students, the United States faces increased competition. The 2013 Global Talent Competitiveness Index ranked the United States ninth in the world. A study by the Expert Council of German Foundations on Integration and Migration found that former “second-tier” destinations for international students, including Australia and Canada, have seen considerable growth in the number of incoming international students. The study examined practices in Canada, Germany, the Netherlands and Sweden that have stimulated this growth and observed that Canada experienced the most rapid increase in international students, with enrollments almost doubling between 2008 and 2013.
Notwithstanding the growth of the foreign student population in the United States, our share of foreign students has actually declined. Between 2001 and 2011, the U.S. share of international students dropped from 28 to 19 percent.

That study is consistent with Business Roundtable research on how the U.S. immigration system fares against its competitors. Analysis by Business Roundtable in 2015 found that the United States ranks 9th among 10 advanced economies on policies that facilitate the retention of international students.


Increasingly, countries are relying upon programs like Optional Practical Training (OPT) to attract and retain foreign students. In 2008, Canada modified its immigration system to expand opportunities for foreign students to remain and work in the country through the Post-Graduation Work Permit Program. Canada is not shy about stating its goals. Pierre Pettigrew, a former Canadian foreign minister, wrote an op-ed on November 2, 2015, in which he stated that Canada has “been especially eager to attract highly qualified international students who will pursue their advanced degrees in Canada and we hope will remain here after their studies to help fill a domestic deficit of graduates in STEM fields.” Canada’s policy has worked – and the country aims to double the number of international students in the country by 2022.

Like Canada, the United States has a deficit in the number of domestic students who are studying in STEM fields. For example, foreign students earned 56.9 percent of all U.S. doctoral degrees in engineering and 52.5 percent of doctoral degrees in computer and information sciences.  Yet the practical training program for foreign students in the United States is shorter than the one offered in Canada.

Countries are expanding practical training for foreign students for several reasons. First and foremost, practical training is a critical professional development tool that allows foreign students in technical fields to maximize the return on their investment in education. Hands-on training through a full-time practical training program helps foreign students convert their classroom knowledge into workplace skills and contributions.

Countries also recognize that post-graduate training programs are attractive to foreign students because they help those students overcome unique obstacles that arise when studying in a foreign country. Foreign students often do not possess the same language skills and professional networks as their domestic peers. Post-graduate training therefore eases students’ transition into the workforce by enabling them to continue their education in a practical setting where they can develop their skills and build professional networks. Students are better positioned to apply for grants and fellowships or to pursue other academic and professional opportunities when they are involved in practical training programs.


DHS has proposed this rule in response to the August 12, 2015, decision by the U.S. District Court for the District of Columbia to vacate the 2008 Interim Final Rule that enacted the 17- month OPT extension for STEM students. The court found, however, that “immediate vacatur of the 2008 Rule would be seriously disruptive” and that vacating the 2008 Rule would force “thousands of foreign students with work authorizations to scramble to depart the United States.” Vacating the 2008 Rule could also impose a costly burden on the U.S. tech sector if thousands of young workers had to leave their jobs in short order.

Business Roundtable agrees with the court and submits that a sudden termination of the STEM OPT program will disrupt businesses and even entire industries. More than 344,000 F-1 students are studying in STEM fields today, and approximately 34,000 students are working today pursuant to the STEM OPT program. An abrupt termination of the OPT STEM program and resulting termination of employment authorization for tens of thousands of high-skilled workers would interrupt research, client delivery, health care services and a host of other business operations.

A wide range of industries, from manufacturing to health care to professional services, rely on workers with STEM education and training. Terminating the status of thousands of high-skilled students who are transitioning into those industries would create uncertainty for all future foreign students and would undoubtedly have significant, long-term implications for our country’s ability to attract and retain STEM graduates.

We are encouraged that DHS acknowledges the timing considerations and is working expeditiously to finalize the regulation before the court’s deadline of February 12, 2016. We urge DHS to dedicate appropriate resources to the regulatory process and to prioritize finalization of the OPT STEM regulation before the stay of the vacatur is lifted by the court.


Duration of Practical Training for STEM Graduates

Under the F-1 regulations as they exist today, a foreign graduate with a STEM degree may only extend his or her OPT authorization for up to 17 months after completion of the initial practical training program. DHS now proposes that an F-1 foreign student with a qualifying STEM degree may obtain a 24-month extension of his or her OPT. Under the proposed regulation, foreign students with STEM degrees would therefore qualify for up to three years of continuous OPT following graduation from a U.S. university.

Business Roundtable supports this change, as it would result in a seven-month extension of practical training and, by allowing STEM graduates to engage in training for a total of three years, would place the United States on equal footing with Canada. A longer period of OPT for STEM graduates would benefit U.S. companies by allowing them to plan projects with longer timeframes. This additional time on OPT would also reduce the likelihood that foreign students would be required to quit work in the middle of a project. For foreign students, the extended training period would deepen their practical understanding, enhance their academic experience and ease their transition into the U.S. professional environment.

Avoiding Disruptions in Practical Training and Immigration Status

Business Roundtable welcomes the provisions in the proposed regulation that reduce the likelihood that government processing times and filing procedures will force companies to terminate the practical training opportunities or employment of foreign students. For example, the proposed regulation would automatically extend the work authorization of an F-1 foreign student who has timely filed an application for work authorization under the STEM OPT program. Today, a company must terminate practical training and employment if the government does not approve the employment authorization request in a timely manner. By granting an automatic extension of students’ work authorization, the regulation would ensure that agency processing times do not force U.S. companies to terminate their ongoing practical training opportunities. Business Roundtable encourages DHS to retain this change in the final rule and to extend the policy to all situations where companies may be forced to terminate the employment of foreign nationals due solely to agency processing delays.

Similarly, the proposed regulation would extend the status of an F-1 student who is the beneficiary of a timely filed H-1B petition and request for change of status. This “cap-gap” provision will ensure that an F-1 foreign student who is selected in the H-1B lottery, but who is unable to begin working pursuant to that visa category until October 1, is not forced to depart the country or interrupt his or her training and work authorization. It would be illogical to require a foreign student or company to incur the costs and burdens associated with departing and reentering the United States if the government has already deemed the foreign student eligible for the upcoming visa category. Business Roundtable welcomes this common-sense policy and encourages DHS to include it in the final regulation.


Business Roundtable agrees with the policy goals of the regulation and supports DHS’s efforts to extend OPT and improve the integrity of the program. However, Business Roundtable is troubled by unnecessary regulatory burdens and a lack of procedural safeguards in the rule. Business Roundtable therefore proposes the following modifications:

DHS should reduce administrative and paperwork burdens that would be imposed under the proposed OPT STEM program.

DHS is proposing that every employer create a customized training plan to enhance the practical skills and methods the student studied while attaining his or her degree. The student would then be required to provide his or her Designated School Official with an evaluation of his or her STEM OPT, signed by his or her supervisor, every six months and at the conclusion of the OPT program.

DHS states that it plans to incorporate the submission of the Mentoring and Training Plan into the electronic Student and Exchange Visitor Information System. No timetable is provided for when DHS will move to an electronic reporting system. In the meantime, companies and foreign students will be required to utilize a paper-based system. DHS itself predicts that an employer will spend 2.5 hours per foreign student to comply with the paperwork burdens. For a company that hires hundreds of foreign students from U.S. universities, this regulation would impose tens of thousands of dollars in costs related solely to paperwork and record-keeping.

DHS can and should make several changes to minimize these costs and burdens. First, DHS should clarify that an employer may utilize electronic signatures and electronic storage to complete and maintain records associated with the OPT program. This would be consistent with the statute and regulations related to the Form I-9 (Employment Eligibility Verification) and would reduce the amount of time it takes for the company and student to comply with the record- keeping obligations. Business Roundtable proposes that DHS include language in the final regulation confirming that an employer will be deemed to have complied with the record- keeping and reporting requirements for the STEM OPT Mentoring and Training Plan if the employer relied upon a system that complies with the current DHS regulations governing completion and retention of Forms I-9.

Second, DHS should only require foreign students and employers to complete recurring evaluations annually, as opposed to every six months. This change would result in a substantial reduction in time and paperwork burdens without compromising the integrity of the program.

Third, DHS should clarify that a “customized” training plan includes, but is not limited to, any training or mentoring plan that the company offers to similarly situated employees, and that a company is not necessarily required to create new training plans to comply with the regulation. It is neither feasible nor reasonable to require companies across the United States to design individualized training and mentoring plans for each F-1 student working pursuant to OPT. Doing so would be prohibitively expensive and time consuming and could put companies in the untenable position of being required to offer F-1 STEM students opportunities that are not necessarily available to similarly situated U.S. workers.

DHS should establish a more flexible process for designating qualifying STEM degrees.

The proposed rule specifically defines which Department of Education Classification of Instructional Program (CIP) categories may serve as the basis for a STEM OPT extension and sets forth a process by which DHS may notify the public in the Federal Register when it updates the list of eligible STEM fields on the Student and Exchange Visitor Program website. However, as the proposed rule is currently drafted, DHS may only update the list with fields that fall into the particular CIP categories specified in the regulation.

It is essential that DHS retain the flexibility to adapt the definition of eligible STEM fields to respond to the innovation that is constantly occurring in today’s economy. It is impossible to predict what fields will be considered “STEM-related fields” in the future, and DHS has itself modified and expanded the current list of STEM fields on multiple occasions. The chairman of the National Science Board, a branch of the National Science Foundation, has said that “[t]he distinctions between STEM and non-STEM jobs in the workplace are beginning to blur.” Business Roundtable recommends that DHS modify the proposed regulation to make it clear that DHS may make additions in its discretion to the STEM Designated Degree Program List through publication in a Federal Register notice.

DHS should implement procedural safeguards, including, but not limited to, privacy protections, before conducting administrative site visits.

The proposed regulation provides that DHS, at its discretion, may conduct a site visit of any employer. The stated purpose of the site visit is to “ensure that each employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with any Mentoring and Training Plan completed and signed by the employer.” The regulation as drafted imposes no requirement that DHS provide advance notice of the administrative site visit, nor does it in any way limit the scope of DHS’s inquiry during the administrative site visit. Put simply, DHS is proposing no procedural safeguards on the administrative site visit program.

Business Roundtable understands that the government deems administrative site visits to be a helpful tool in ensuring that the F-1 OPT program is not abused. However, before initiating any site visit program, DHS should explain what information will be gathered in connection with a visit, how such information will be stored in government systems, what opportunities will exist to review and correct the information and when ICE will share such information with USCIS. DHS should also issue publicly-available guidelines on how site visits will be conducted, including guidance on how ICE agents should respect privacy protections in place at U.S. companies.

Finally, in the absence of any prior evidence of fraud or abuse, ICE should afford companies at least 48 hours advance notice of a site visit, so that they may make arrangements to have officials familiar with the STEM OPT program available to assist the government with its inquiry.

DHS should clarify that a foreign student who qualifies for a second STEM OPT extension should not experience any interruption in his or her practical training.

DHS has proposed that an F-1 foreign student with a qualifying STEM degree may obtain a 24- month extension of his or her OPT. DHS also has proposed that no student may be authorized for more than two lifetime STEM OPT extensions and that the second OPT extension must be based on a higher-level degree than the degree that was the basis for the student’s first OPT extension. However, in the preamble to the proposed regulation, a footnote suggests that a foreign student who earns successive qualifying STEM degrees “will be unable to link this extension with his or her first extension.” Business Roundtable believes that the language in the footnote is inconsistent with the structure and goals of the proposed regulation and could result in a disruption of ongoing practical training for foreign students.

By placing a limit on the number of STEM OPT extensions that a foreign student may obtain, and by imposing a requirement that the second extension must be based on a higher-level degree than the degree that was the basis for the first OPT extension, DHS ensures that the program will not be abused and that few foreign students will be in a position to obtain two STEM OPT extensions. Business Roundtable recommends that DHS clarify that a foreign student who qualifies for two OPT extensions may complete them without any disruption in his or her practical training. Students who are engaged in practical training in connection with a long-term grant or research project, or who have already earned two successive degrees in qualifying STEM fields, should not be required to interrupt their practical training and return to school.
Business Roundtable therefore requests that DHS clarify that foreign students may link extensions of practical training, provided all other requirements are met.


Business Roundtable urges DHS to finalize and implement this regulation consistent with the above-suggested modifications and looks forward to continued engagement with the agency on immigration issues.