On April 11, 2018, without highlighting or clarifying a change, USCIS updated its program materials regarding the employer’s training obligation related to STEM OPT students. STEM Optional Practical Training (OPT) allows students who receive degrees in science, technology, engineering and mathematics to apply for a 24-month extension to their post-completion OPT. The USCIS update details the employer’s need to maintain a bona fide employer-employee relationship with the student.
USCIS now takes the position that the STEM OPT 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 site visits to ensure the employer is meeting program requirements.” It continues, “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.”
In short, the update means that USCIS now takes the position that participants in the STEM OPT program are no longer allowed to work at a 3rd party work site. Because USCIS provided no additional guidance related to this latest sneak attack on legal immigration, it is unclear whether this is a simple program change, valid policy, rule or simply a Department of Homeland Security whim. It is also unclear whether this action applies to approved STEM OPT or to future STEM OPT applications. However, because STEM OPT students must report to their Designated School Official (DSO) every six months, the new program will essentially apply to all STEM OPT students.
Given the uncertainty caused by yet another poorly implemented administration immigration action, employers will need to weigh the risk in retaining STEM OPT employees at 3rd party work sites. Employers with existing STEM OPT workers who already have an approved STEM OPT, who have properly disclosed the third-party worksite placement, and who are carefully maintaining a direct employer-employee relationship must consider that any changes to the worksite will be considered a material change. A material change in the approved training will require the student and employer to submit a modified training plan to the student’s Designated School Official (DSO). Therefore, employers seeking to fully comply with the most-recent USCIS action will need to report their material worksite change to the student’s DSO. If an employer, therefore, wishes to remove the STEM OPT student from the third-party worksite a Form I-983 must be completed and submitted to the student’s DSO.
“It is the student’s responsibility to provide changes in information to their DSO, and failure to do so would constitute a violation of the student’s F-1 status.
If there are material changes to or deviations from the Form I-983 the DSO has on file during the STEM OPT extension period, the student and employer must sign a modified training plan reflecting the material changes. The student (or employer) must file the modified Form I-983 with the DSO at the earliest available opportunity.
Reporting material changes to the training plan keeps students and employers accountable to the original Form I-983 and ensures that the DSO and DHS have access to accurate information about STEM OPT students.”
An employer found in violation of the new action, is likely only to suffer the loss of the STEM OPT employee. As is often the case with current administration attacks on legal immigration, it is the nonimmigrant student who risk loss of F-1 status by remaining at the third-party client worksite. The student has an affirmative responsibility to report any employer non-compliance with the STEM OPT rules and to leave the practical training opportunity if the employer is not compliant with the program. A period of student unemployment, caused by an employer’s failure to comply with program requirements, on its own will not affect the STEM OPT student’s status so long as the student reports changes in employment status and adheres to the overall unemployment limits.
The Department of Homeland Security (DHS) could revoke the student’s F-1 status and may prevent the company from qualifying to employ future STEM OPT applicants. F-1 students are reminded that it is their responsibility to maintain their lawful immigration status. A violation of the terms of your nonimmigrant visa could result in removal from the United States and potential bars to future adjustment of status to lawful permanent resident under INA § 245(c)(2) and 245(c)(8). F-1 students wishing to avail themselves of OPT and STEM OPT, therefore, will want to avoid any risk that they may violate their nonimmigrant status in the United States.
Excerpts From: studyinthestates.dhs.gov/USCIS.gov
About the Author Scarborough Law, LLC is a multidisciplinary practice born out of the founding partner’s frustrations with the delays and bureaucracy of traditional law firms. Scarborough Law, therefore, provides client-focused legal services aimed at recognizing the needs of their clients and delivering a superior personalized service.