USCIS has announced that F-1 students on STEM OPT can engage in training experience at third party locations as long as all the mentoring and training requirements are fulfilled. On August 17, 2018 USCIS updated the Optional Practical Training Extension for STEM Students (STEM OPT) page on its website and clarified the reporting responsibilities and training obligations for participating in the STEM OPT program.
In April 2018, USCIS had quietly updated its website on STEM-OPT that appeared to prohibit placement of 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.
We had discussed this issue in our GLF Newsletters dated May 15, 2018 and June 29, 2018. The language used on the USCIS website was overreaching and had caused a lot of confusion to Employers and student-employees regarding their current employment authorization status. GLF had predicted that such a sweeping change which violated the preamble of the STEM OPT regulations would be challenged in court as a violation of the APA.
In August 2018, this change in rule was indeed challenged in court by a group called IT Serve Alliance on the grounds that this was a violation of the Administrative Procedures Act (APA), just as GLF had predicted. The argument made was that USCIS did not follow or comply with the rule making requirements, specifically the formal notice and comment period required for new regulations.
Under the pressure of this lawsuit, USCIS has come up with following updates to the website.
In this new guidance Department of Homeland Security (DHS) has clarified that Staffing and Temporary Agencies and Consulting Firms may seek to employ students under the STEM OPT program, as long as they provide the practical training experience to the student in-house and demonstrate a bona fide employer-employee relationship. They should not contract students out to work at a customer or client site. STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including: that the employer has and maintains a bona fide employer-employee relationship with the student.
Any employer who wishes to employ a student participating in the STEM OPT extension program must ensure that:
1.The employer has and will maintain a bonafide employer-employee relationship with the student
2.The employer has sufficient resources and personnel available to provide appropriate training in connection with the specified opportunity at the location(s) specified in the Form I-983, Training Plan for STEM OPT Students
3.The STEM OPT student will not replace a full- or part-time, temporary or permanent U.S. worker
4.The training opportunity will assist the student in attaining his or her training goals.
DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training and Mentoring Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience.
This update comes as a relief to F-1 students on STEM OPT placed at a client site. Employers may continue to place STEM OPT participants at a third-party work site, but must remain in compliance with the STEM OPT regulations (show bona fide employer-employee relationship). The work site must also be disclosed on the I-983. Also, the employer should continue to train and mentor the students and cannot assign, or otherwise delegate, its training responsibilities to a non-employer third party.
SIGN UP FOR GLF NEWSLETTER
GLF will continue to follow further developments in this matter and we will provide updates through our Newsletter as and when they become available.
GLF receives numerous emails and phone calls every day asking for comment on various proposed bills and media reports that are often inaccurate. It is our job to separate fact from fiction and advice clients on important updates that are relevant. The best way to receive accurate information is through GLF Newsletters. We encourage you (and your employees) to sign up for GLF Newsletter. If you are not already signed up to receive our Newsletters, please do so by visiting www.gokarelaw.com and signing up under the Newsletter Tab. All we need is your name and email address and it takes very little time to sign up. You can also review all of our earlier GLF Newsletters on our website.