David W. Gearhart, Member

USCIS (United States Citizenship and Immigration Services) recently discreetly revised its STEM OPT program, resulting in a significant change. Certain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may apply for a 24-month extension of their post-completion optional practical training (OPT) provided they meet certain requirements. Now, USCIS has defined in detail the employer-employee relationship requirement and implemented certain restrictions on third-party employment placements. Specifically, USCIS now interprets the STEM OPT extension rule established in 2016 to require the employee be placed only at the worksite of the employer.

USCIS has now essentially prohibited off-site placement. The student’s training experience must take place on-site at the employer's place of business or worksite(s), where U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements. If the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. The student’s OPT experience may not take place at the employer's clients or customers because ICE would lack authority to visit such sites. In USCIS’ view, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student, i.e. 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. For the same reason, online or distance learning arrangements may not be used to fulfill the employer’s training obligation to the student. In order 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. 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.

This change was made without any formal announcement. The USCIS updated existing information on its webpage with new information. In doing so, without prior notice or opportunity for comment, USCIS effectively has created a state of confusion. As a result, employers and students working under STEM OPT, with previously approved Forms I-983, are unsure of what action they must now take. We urge all employers with employees on STEM OPT placed at third-party worksites to consult with our team of attorneys in order to understand the possible ramifications of this new policy.