STEM OPT and Third-Party Worksites: USCIS Reverses Courses, Specifically Permits Placement

USCIS has provided much needed clarification with respect to the ability of F-1 STEM OPT holders to be placed at and provide work at a location other than their employer’s office.     Under the new guidance, USCIS is specifically allowing STEM OPT to engage in training at a location other than their employer’s principal place of business as long as all of the mentoring and training obligations are met.

Background of the STEM OPT Third-Party Placement Controversy

A few months ago, USCIS appears to have quietly revised their “Optional Practical Training Extension for STEM Students (STEM OPT)” web page to explicitly state that STEM OPT participants cannot work at any location other than the employer’s principal place of business.  The arguments noted in the USCIS web page were centered around the inability of the employer to provide mentoring and training of the STEM OPT participant is not at their office and also around the argument that USCIS is allegedly unable to conduct a third-party site visit to verify the STEM OPT participant placement.   This is the prior language (which has now been revised):

“…a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). See 8 C.F.R. 214.2.(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).”

This guidance was introduced very quietly, without any formal announcement, warning or following the rulemaking process which is normally required for significant changes to the regulations.   In reliance, many Designated School Officials (DSO) simply refused to authorize STEM OPT placements for third-party placements.   As a result, a significant population of STEM OPT participants and their employers found themselves struggling to interpret and comply with this new “guidance” especially when this is combined with the new unlawful presence  policy for F status holders.  Many STEM OPT participants, fearing violating their status if they continued to work and obtain training at third-party worksites simply quit their employers and sought “in-house” employment, often at significant cost.

On June 14, 2018, this “guidance” was challenged in court under the Administrative Procedure Act that it did not follow or comply with the rulemaking requirements, specifically the formal notice and comment period required for new regulations.

USCIS Revised STEM OPT Website and Specifically Permits Third-Party Training and Mentoring STEM OPT Placements

In a note dated August 17, 2018, USCIS is addressing this controversy and reversing course:

DHS is clarifying that 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. DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training 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.

USCIS has also updated the STEM OPT website accordingly.   We provide a comparison to show the text which was removed and the new revised guidance (underlined text is for new language):

The Employer’s Training Obligation

As noted above, to be eligible to employ a STEM OPT student, an employer must have and maintain a bona fide employer-employee relationship with the student. The employer must attest to this fact by signing the Form I-983, Training Plan for STEM OPT Students. In order to To establish a bona fide relationship, the employer may not be the student’s “employer” in name only, nor may the student work for the employer on a “volunteer” basis. Moreover, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student. See 2016 STEM OPT Final Rule (pp. 13072, 13079).

An employer must have sufficient resources and trained or supervisory personnel available to provide appropriate training in connection with the specified training opportunity at the location(s) where the student’s practical training experience will take place, as specified in the Form I-983. The “personnel” who may provide and supervise the training experience may be either employees of the employer, or contractors who the employer has directly retained to provide services to the employer; they may not, however, be employees or contractors of the employer’s clients or customers.  Again, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the
student, utilizing its own personnel.  Additionally, under no circumstances would another F-1 student on with OPT or a STEM OPT extension (who is undergoing training in their own right) be qualified to train another F-1 student on with a STEM OPT extension. See 8 C.F.R. 214.2(f)(10)(ii)(C)(10) and 2016 STEM OPT Final Rule (pp. 13041, 13042, 13065, 13079, 13080-81, 13119).

While employers may rely on their otherwise existing training programs or policies to satisfy the requirements relating to performance evaluation and oversight and supervision, the student’s Training Plan must nevertheless be customized for the individual student. For instance, every Training Plan must describe the direct relationship between the STEM OPT opportunity and the student’s qualifying STEM degree, as well as the relationship between the STEM OPT opportunity and the student’s goals and objectives for work-based learning. Moreover, a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). See 8 C.F.R. 214.2(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).

Moreover, the training experience must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student’s worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. 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.

For the same reason, online or distance learning arrangements may not be used to fulfill the employer’s training obligation to the student. For instance, the employer may not fulfill its training obligation to provide a structured and guided work-based learning experience by having the student make periodic visits to the employer’s place of business to receive training, while the student is actually working at the place of business or worksite of a client or customer of the employer. Similarly, the employer may not fulfill its training obligation by having the student make periodic telephone calls or send periodic email messages to the employer to describe and discuss their experiences at the place of business or worksite of a client or customer of the employer. See  8 C.F.R. 214.2.(f)(10)(ii)(C)(11) and 2016 STEM OPT Final Rule (p. 13041, 13042, 13049, 13062, 13064-66, 13070, 13071, 13090, 13113).

As noted above, DHS, at its discretion, may conduct a site visit of any STEM OPT employer to ensure that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with the Form I-983. See 8 C.F.R. 214.2(f)(10)(ii)(C)(11).  Consistent with this provision, during a site visit, DHS may verify that the employer that signs the Form I-983 is the same entity that provides the practical training experience to the student and ensure compliance with the 2016 STEM OPT Final Rule.  For ICE to effectively conduct these site visits as part of its oversight responsibilities, it is important that employers report any change in a student’s employment address.  As indicated above, the employer and student must report such a material change by submitting a modified Form I-983 to the DSO at the earliest available opportunity.

Third-Party Placement of STEM OPT Participants Allowed But Compliance Obligations Remain

It is important to note that while USCIS has backtracked from their attempt to prohibit outright third-party placements of STEM OPT participants,  employers who choose to do so should continue to remain full compliance with the relevant STEM OPT regulations, including the requirements to prepare and adhere to the I-983 mentoring and training plans.   STEM OPT employers must continue to provide the training and mentoring of STEM OPT participants and such training responsibilities cannot be delegated to the third-party clients.    Also, changed to the terms and location of the placement must be reported immediately.

Please see the USCIS STEM OPT guidance page for more directions on the responsibilities of STEM OPT participants and employers.

Conclusion

Our office will continue to monitor developments relating to how this new policy will be implemented and enforced by USCIS.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, we have a number of phone consultation and contact options.