Heads Up: Surreptitious Change for Off-Site Placements for STEM OPT Extensions

By Immigration Lawyers Chris Generous and Emily Sumner

Employers and certain foreign students who have graduated from US universities have enjoyed the extended STEM OPT period for a few years now. Employers have successfully placed STEM OPT students at offsite client sites until now, as it has not been prohibited by the regulations, as long as the employer can document that they are training and controlling the employment of the STEM OPT student employee. Further, USCIS and ICE have not provided clear guidance on whether off-site placements were permissible, and certainly have not expressly prohibited the practice, as long as the employer signing the training plan was the entity providing the training to the STEM OPT employee.

However, USCIS has recently updated its STEM OPT webpage about employer training requirements for F-1 students using STEM optional practical training. The update places restrictions on how employers, especially staffing agencies, train and employ F-1 students. This webpage now says:

Staffing and temporary agencies may seek to employ students under the STEM OPT program, but only if they will be the entity that provides the practical training experience to the student at its own place of business and they have a bona fide employer-employee relationship with the student. For instance, a student might possibly receive STEM-related training while working in such an entity’s information technology (IT) department.

Such entities may not, however, assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. As noted above, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student. Moreover, the student’s practical training experience must be provided by the employer’s own trained or supervisory personnel at the employer’s own place of business or worksite(s), to which ICE has authority to conduct employer site visits to ensure that the employer is meeting program requirements.

This is the only place that this “announcement” has been made. The STEM OPT program was created through regulation, which requires a specific rule-making process, including a proposed rule and a comment period for stakeholders to express their concerns or opinion about the proposed rule, and then a final rule that would come into effect some time later, with advance notice. Changes to regulations would also require the same rule-making process. Instead, in this case, the change was slipped onto a webpage without announcement and certainly without undergoing the formal rule-making (or changing, in this case) process.

What Does This Mean for Me?

At a minimum, USCIS’s updated STEM OPT webpage signals a likely stricter interpretation for showing a bona fide employer-employee relationship. DHS originally expressed concerns over STEM OPT student workers being placed offsite when it published the STEM OPT proposed rule, and in the preamble of the final rule (81 Fed. Reg. 13039). However, there was no express prohibition on placing STEM OPT employees offsite as long as the other requirements were met.

This change as indicated on the webpage may affect approval of I-983 training plans, staffing agency practices, and the occurrence of STEM OPT related site visits. However, the STEM OPT extension regulations do not specifically prohibit offsite work placements. As this change is very recent, we have yet to see how this will play out. If an employer choses to continue to place STEM OPT workers at offsite client locations, it is possible that USCIS would find that there is a status violation if there was a site visit, or there could be other complications in light of this change. That being said, at this time there is no regulatory change that prohibits STEM OPT employees from being placed offsite, and there is no other announcement from USCIS or ICE about this supposed policy change. If employers (or STEM employees) have questions about how they should proceed, they should seek advice from their immigration attorney.

We are dedicated to continuing to represent employers, employees, families, and individuals in this challenging immigration environment. If you need assistance, please contact us today via email at info@sumnerimmigration.com, or by calling our office at 804-396-3412. We are immigration lawyers based in Richmond, VA, but serve clients across the country.