USCIS Changes Position on Third-Party Placement of STEM OPT Workers19 Apr 2018
The U.S. Citizenship and Immigration Services (USCIS) has updated its STEM OPT webpage to reflect an apparent change in the agency’s interpretation of the 2016 STEM optional practical training (OPT) rule for F-1 students. Specifically, the USCIS now interprets the 24-month STEM OPT extension rule from 2016 to require a STEM OPT worker to be placed only at a worksite of the employer. In other words, the USCIS now says that any offsite placement, including at a third-party worksite, is prohibited.
Background on Offsite Placement of STEM OPT Students
Under the 2016 STEM OPT extension rule, in order to employ a student who has been working based on a STEM OPT extension, the employer must work with the foreign national student to complete a form I-983 training plan, and the employer must agree to supervise and train the F-1 student for the duration of the program. The regulations do not specify whether the training and supervision can be conducted in situations where the employee will be working offsite. And, neither of the two federal government agencies involved in administering and enforcing the rules of the STEM OPT program – the USCIS and U.S. Immigration and Customs Enforcement (ICE) – ever specifically addressed this question.
Given that offsite placement of STEM OPT students was not specifically prohibited, it was reasonable to conclude that such work arrangements were legally permissible. Moreover, the form I-983 asks the employer to list both the company’s address and the worksite name and address, implying that immigration officials anticipated that STEM OPT students would be placed at third-party or other offsite locations.
Rationale for Change in USCIS Interpretation
The USCIS has not made any formal announcement regarding this apparent shift in its policy and interpretation of the STEM OPT regulations. Rather, the USCIS simply updated an existing USCIS webpage with the new information.
The reasoning by the USCIS as to why third-party placement of STEM OPT students is, at best, suspect. It is based on the USCIS claim that ICE must have access to a student’s worksite and, if the worker is placed at a third-party location, “… ICE would lack authority to visit such sites.” The USCIS then goes on to state that this also means online or distance training arrangements are insufficient, even if the employee would visit the employer’s offices periodically.
It should be noted that changing how a regulation is implemented by way of altering a webpage does not have the same legal force as issuing a regulation, or even that of a formal memorandum issued by the USCIS offering its regulatory interpretation. Still, government agencies tend to be given wide latitude in deciding how to interpret regulations, so even if this policy shift by the USCIS is challenged in federal court, it is unclear how a court may rule. Accordingly, foreign nationals working on a STEM OPT extension and their respective employers should be aware of this apparent change in the interpretation of the third-party placement rule for STEM OPT students, and consult with a qualified attorney to understand the risks and discuss any possible options.
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