In April 2018, USCIS updated its website on STEM Optional Practical Training (OPT) that appears to prohibit placement on STEM OPT students at third-party worksites on the grounds that U.S Immigration and Customs Enforcement (ICE) would lack authority to visit the third-party worksite and verify that employer is meeting program requirements.

USCIS website updates also place limits on what constitutes “structured and guided work-based learning” for meeting the training and supervision requirements of the STEM OPT Rule. STEM OPT allows students who receive degrees in science, technology, engineering and mathematics to apply for a 24-month extension to their post-completion OPT.

Third-party placement under the STEM OPT Rule (finalized March 11, 2016 – 81 FR 13039) had been of concern when it comes to meeting the training and supervision requirements of Form I-983. Employers had been complying with the training and supervision requirements by offering various arrangements that included inter alia: remote WebEx training, periodic visits with Student at third-party worksite, having the Student report to Employer’s Project Managers at third-party worksite etc. According to USCIS website update, STEM OPT training experience must take place on-site at the employer’s place of business and “online or distance learning arrangements may not be used to fulfill the employer’s training obligation.” USCIS gives examples of what is not “structured and guided work-based learning” and as such will not meet the training and supervision requirements of the STEM OPT Rule:

1. Student making periodic visits to employer’s place of business to receive training
2. Student make periodic phone calls or send periodic email messages to employer

The language used on the USCIS website is overreaching and could be interpreted as implying that a STEM OPT employee could NOT be placed at a third-party worksite of an employer’s client or customer, even when there is a bona fide employer-employee relationship. This is contrary to the preamble to the STEM OPT Final Rule that had stated that students can qualify for STEM OPT extensions if they are bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience. The changes on the USCIS website could have some major implications for staffing companies that place OPT students off-site. These changes have caused dilemma to employers and their student-employees regarding their current employment authorization status, when placed at third-party worksites. The issue is under review and requires further discussions with the DHS. GLF will be closely monitoring this issue.

GLF will continue to follow further developments in this matter and we will provide updates through our Newsletter as and when they become available.

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