USCIS Clarifies Offsite Employment Obligations for STEM OPT Extensions
On August 17, 2018, the U.S. Citizenship and Immigration Services ("USCIS") changed its position on third-party worksite locations for STEM Optional Practical Training ("OPT") extensions. We have summarized below the changes to employer reporting requirements and offsite employment on the USCIS' updated STEM OPT website page.
Revised Reporting Requirements During STEM OPT Extensions The updated web page provides the following changes to STEM OPT employer reporting requirements:
Report any material changes to the STEM OPT student’s employment by filing a modified Form I-983 to the Designated School Official ("DSO") at the earliest available opportunity. Previously, employers were required to report material changes within 5 business days.
Report the STEM OPT student’s termination of employment or departure to the DSO within 5 business days.
Bona Fide Employer-Employee Relationship and Offsite Employment for STEM OPT Extensions The USCIS STEM OPT webpage provides clarification on the placement of STEM OPT students at third-party worksites. Previously, the USCIS prohibited STEM OPT training at third-party work sites and required that the training take at the employer’s place of business or locations on the basis that the Immigration and Customs Enforcement ("ICE") must have access to the worksite in order to conduct employer site visits. The August 2018 updated webpage has removed this restriction and now states that the training experience may take 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.” In addition, USCIS removed from the webpage the language prohibiting online or distance learning arrangements. For staffing and temporary agencies and consulting firms, the USCIS maintains that theses entities may seek to employ STEM OPT students but only if they will be the entity that provides the practical experience. While the USCIS’ clarification eases the restriction on STEM OPT training at third party work locations, the STEM OPT employer must comply with the following conditions and obligations to demonstrate bona fide employer-employee relationship:
Employer who signs the Form I-983 must be the same entity that provides the practical training, i.e. the employer may not be the student’s “employer” in name only, and the employee may not engage in “volunteer” work.
Employer has the sufficient resources and personnel available to provide appropriate training in connection with the specific opportunity at the location(s) specified on the Form I-983.
Personnel who provide and supervise the training may be either employees of the employer or the contractors who the employer has directly retained to provide services to the employer. (Note: An F-1 student with OPT or a STEM OPT extension is prohibited from training another F-1 student with a STEM OPT extension).
Personnel providing and supervising the training cannot be employees of the STEM OPT employer’s customers or clients. 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).
What Do the Revisions Mean for STEM OPT Employers and Students?
The Department of Homeland Security (DHS) will review on a case-by-case basis whether a bona fide employer-employee relationship exists, and whether the employer who signed the Form I-983 Training Plan is providing the training experience. While the updated USCIS webpage has seemingly removed the prohibition on third-party work locations, we recommend employers to contact our office where offsite assignments are needed for the student’s training to ensure that the placement is in compliance in the event of a possible ICE worksite visit. Moreover, it is very important for students and employers to adhere to the STEM OPT reporting requirements. Should any material change arise in a STEM OPT student’s employment such as a change in the student’s employment address or any significant deviation from the training plan, we recommend employers to consult with our office and file the modified Form I-983 with the DSO, if needed, as soon as possible.