In April 2018, USCIS updated the page on its website relating to Optional Practical Training Extension for STEM Students (STEM OPT) which seems to indicate its view that F-1 students in the STEM OPT program are not permitted to engage in OPT at third-party locations. Of particular concern is the following statement: “For instance, the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.” However, this is directly contradicted by both the preamble of the STEM OPT Regulation and ICE FAQs on the matter. According to the Preamble of the March 11, 2016 STEM OPT Final Rule:
There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through ”temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship…. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.
In addition, in response to an FAQ relating to its policy on placement agencies, ICE states:
STEM OPT students are permitted to use staffing/placement agencies to find a training opportunity. However:
- All STEM OPT regulatory requirements must be maintained, and
- The staffing/placement agency cannot complete and sign the Form I-983 as an employer, unless:
- The staffing/placement agency is an E-verified employer of the student, and
- The staffing/placement agency provides and oversees the training.
At the USCIS Open Forum at the 2018 American Immigration Lawyers Association (AILA) Annual Conference, USCIS reiterated its concern that if the training takes place at a third-party site, the “employer” who signed the training plan would not be the one to supervise the student.
Nevertheless, it appears that the change in language on the USCIS website is overreaching, and that a STEM OPT employee could be placed at the worksite of an employer’s client or customer, as long as the STEM OPT student is a bona fide employee of the employer signing the training plan, and the employer that signs the training plan provides the practical training experience. In addition, “staffing agencies” may provide a training opportunity as long as they are an E-Verify employer and they directly employ the student and oversee the student’s training.
AILA has received reports (as recent as June 2018) of third party STEM placements being approved after responding to a request for evidence (RFE) where the bona fide employer/employee relationship was thoroughly documented. At the same time, AILA has received reports of RFEs on change of status to H-1B petitions seeking “a detailed explanation and evidence why the beneficiary is working at a different location than the STEM employer’s place of business.”
Lastly, one should note that if the new unlawful presence memo becomes effective on its terms on August 9, 2018, there is a risk that a finding that the employer was not properly supervising the student’s training could lead to a status violation determination, which would result in the retroactive accrual of unlawful presence.
(Source: American Immigration Lawyers Association (AILA) )
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.
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