USCIS Reverses Course on Third-Party Placement of Foreign Students

Employers of STEM OPT students should expect more scrutiny

Roy Maurer By Roy Maurer August 28, 2018
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​Foreign national students in science, technology, engineering and mathematics (STEM) degree programs who are participating in optional practical training (OPT) can again work at third-party client sites, U.S. Citizenship and Immigration Services (USCIS) clarified in a recent announcement.

"The update removes language that the agency had previously added to its website without notice stating that STEM OPT students were prohibited from being placed at client sites," said Jeremy Fudge, managing partner at Berry Appleman & Leiden, a corporate immigration law firm headquartered in Dallas.

The USCIS site now states 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."

Fudge explained that the Department of Homeland Security will review on a case-by-case basis "whether a student is a bona fide employee of the employer and whether the employer who signs the training plan is the same entity that employs the student and provides the practical training experience."

USCIS also said that it "did not intend the prior language to be read as disallowing remote work" and "the revised language on the website makes clear that STEM OPT students may work remotely or at client work sites so long as all the training obligations are met."

The STEM OPT program allows foreign graduates of U.S. colleges and universities with STEM degrees to work for up to three years after graduation under their student visas. The agency's reversal means that staffing and consulting firms are no longer locked out of the program, which is a prime incubator for sponsoring workers for H-1B visas.

The Society for Human Resource Management and its affiliate, the Council for Global Immigration, had requested in a letter in May that USCIS remove the language from its website that prohibited third-party placement for students working under STEM OPT.

[SHRM and CFGI e-learning course: Hiring Foreign Nationals: Nonimmigrant Visas]

Back and Forth

In January, without any announcement, USCIS changed language on its website stating that the STEM OPT training "must take place onsite at the employer's place of business or worksite(s)."

In addition, "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 department."

The change in policy was not officially issued through the rulemaking process, and USCIS did not issue any guidance on it.

The issue became more urgent after USCIS also enacted changes to the rules on unlawful presence that put students at risk of accruing unlawful presence in the country if they fall out of status, in this case by potentially violating the terms of their training.

"The back and forth is frustrating because individuals and companies cannot properly plan," said Andrew Wilson, an immigration attorney and partner at Lippes Mathias Wexler Friedman, based in Buffalo, N.Y. "How many companies did not hire STEM OPTs for a third-party client assignment because they believed it was not allowed? How many companies will be concerned that USCIS could change its mind on this issue again?"

More Oversight Expected

While the reversal offers relief for students and employers, organizations should be cautious about placing OPT students at third-party client worksites.

Wilson said: "There is no doubt these types of cases will be scrutinized more heavily. USCIS wants to see clear, persuasive and comprehensive evidence that the employer still controls employment and is still coordinating oversight and supervision."

Additional employer reporting requirements include:

  • Reporting material changes to student employment to the designated school official at the earliest opportunity.
  • Reporting termination of a student's employment to the designated school official within five business days.

Wilson advised employers to consider providing more documentation confirming employment such as an offer letter, benefits paperwork, an organizational chart, and the company's performance review process. "They may also want to provide documents on the client site, project and whether other company employees are at that site. They definitely want to provide an explanation on how the STEM OPT individual will be supervised and evaluated while working at the site."

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