USCIS Tightens Language on Employer-Employee Relationship and Third-Party Placement for STEM OPT Students

The United States Citizenship and Immigration Services (USCIS) quietly revised the STEM OPT requirement page, showing only as “last reviewed/updated”, on January 24, 2018. USCIS revised the Optional Practical Training (OPT) temporary employment for F-1 students working in the science, technology, engineering, and math (STEM) fields, taking a more severe interpretation of the rules for STEM OPT students and employers and what constitutes a bona fide employer-employee relationship. Some of the main points on the new content of the page include the following:

• The employer may not be the student’s employer in name only, rather the entity that signed the Form I-983, Training Plan for STEM OPT Students, must be the same entity that provides the training experience for the student. The student must also not be working on a “volunteer” basis.
• The people who provide and supervise the training experience may be either employees or contractors of the employer. They cannot be employees or contractors of the employer’s clients or customers. Students who are on OPT or STEM OPT extension are not permitted to train other students on STEM OPT extensions. Also, the employers cannot assign the training responsibilities to another non-employer third party.
• The training must take place onsite at the employer’s place of business or worksite(s), at which the U.S. Immigration and Customs Enforcement (ICE) has authority to conduct onsite visits to ensure that employer is meeting the program requirements. Online, telephonic, or distance learning arrangements are not permitted. Additionally, STEM OPT students cannot work at client or customer worksites, since ICE would not be permitted to visit those worksites to conduct site visits.
• Temporary and staffing agencies may seek to employ students under STEM OPT, but only if they themselves will be the entity to employ the student and provide training. A STEM OPT student can work, for example, at a staffing agency’s IT department. However, the staffing agency would not be permitted to hire the student and send him or her to work for a customer or client at the client’s place of business.

In short, the employer that petitions for a student’s STEM OPT extension must be the one to hire, pay and train them at the employer’s place of business or one of the employer’s worksites. An employer cannot petition for a student on behalf of another employer in any manner. USCIS has stated that these stricter rules are there “in order to ensure the integrity of the program and provide safeguards for U.S. workers.” This revision has provided much more precise guidance as opposed to the previous parameters, where it only stated that the employer who signs the Form I-983 must be the same employer who provides the training experience.