Changes for Certain STEM OPT Students

Practice Alert: USCIS Changes Interpretation for Certain STEM OPT Students

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In April 2018, USCIS updated the page on its website for Optional Practice Training for STEM students 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.” According to the preamble to 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.

Therefore, 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. This issue has been brought to the attention of DHS and interested members of Congress through industry groups and others and we understand that the issue is currently under review.

 

Source: AILA Doc. No. 18051134.