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USCIS Restricts Third-Party Placement of STEM OPT Students

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Editor's Note:DHS clarified August 17 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.

Employers of students with science, technology, engineering and mathematics (STEM) degrees approved for optional practical training (OPT) are mostly prohibited from assigning student workers to third-party client sites, according to a recent change on the U.S. Citizenship and Immigration Services (USCIS) website.

According to the 2016 STEM OPT regulations, the student worker's training plan must be signed by the entity that has a bona fide employment relationship with the student, and the bona fide employer must be in a position to train the student and oversee the implementation of the training plan, explained Otieno B. Ombok, an attorney in the White Plains, N.Y., office of Jackson Lewis.

OPT allows foreign nationals to maintain their student visas while working in the U.S. after graduating from U.S. colleges and universities and many employers use the program in order to hire foreign nationals straight out of school without having to wait for a decision on an H-1B petition. The STEM OPT extension allows foreign graduates of U.S. colleges and universities with STEM degrees to work for up to three years post-graduation if they meet certain training requirements and their employers use the E-Verify electronic employment verification system.

It was noted in 2016 that STEM OPT may not be "apt for certain types of arrangements" such as various outsourcing labor-for-hire employment scenarios, but the regulations did not specify whether the training and supervision could be conducted in situations when students worked offsite.

USCIS is now stating that the STEM OPT training "must take place onsite at the employer's place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct site visits to ensure the employer is meeting program requirements."

[SHRM and CFGI eLearning: Hiring Foreign Nationals: Nonimmigrant Visas]

The justification for the change is that ICE would lack the authority to visit third-party client workplaces, so student workers cannot be contracted out to their employer's clients or customers.

But some, including Justin Storch, manager of agency liaison at the Council for Global Immigration, a Washington, D.C.-area advocacy organization supporting employment-based immigration, question whether ICE does in fact lack the authority to investigate third-party worksites.

"Third-party placement has gotten a lot of scrutiny with regard to H-1Bs, and now it's clear that scrutiny is moving into the OPT space," he said. "It's unclear how this change came about, and we believe more clarification is needed as to the scope of permissible work on OPT."

USCIS also said that instructing students to make periodic visits to the employer's place of business while the student is actually working at a third-party site, or having them make periodic telephone calls or send periodic e-mails while working at the client site will not be sufficient to fulfill the employer's training obligation to the student.

Students may still receive STEM-related training while working for staffing and other outsourcing firms in certain situations, such as when they work in the employer's information technology department, the agency said.

"These clarifications do not mean that it would not be possible to have a STEM employee working at a third-party worksite," Ombok said. "There might be situations where a bona fide employer/employee relationship could still be established if, for instance, a supervisor is co-located at the client site and actively supervising the STEM employee."

Storch said that there are many unanswered questions about the website change that need clarification. It is unclear whether the change of language has the force of a change in regulation, for instance. "It is also unclear how this affects employees who had approved OPT before this change," Storch said.

Andrew Greenfield, managing partner of the Washington, D.C. office of immigration law firm Fragomen, Del Rey, Bernsen & Loewy, is one who does not believe that the language reflects a policy change. 
“ICE and the Student and Exchange Visitor Program, not USCIS, has authority over policymaking and enforcement. Until we hear otherwise from them, it is business as usual,” he said.

"What seems clear is that this is another step taken by USCIS to comply with President Donald Trump's Buy American, Hire American executive order focused on protecting U.S. workers," Ombok said.

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