Questions Regarding STEM OPT and Certain Third-Party Businesses and Worksites

On May 11, 2018, the American Immigration Lawyers Association noted a potentially significant development in the United States Citizenship and Immigration Services' (USCIS) interpretation of regulations regarding the types of employment arrangements that are permissible for STEM OPT students.¹ The regulations at issue pertain to whether F1 students engaging in employment under the STEM OPT program may engage in OPT at third-party worksites.

The USCIS page on the F1 STEM OPT extension, last updated on January 11, 2018, includes the following passage on the issue [PDF version]:

Moreover, the 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 employer site visits to ensure that the employer is meeting program requirements. This means that ICE must always have access to a student's worksite; if the student is sent to different worksite locations as part of the training opportunity, ICE must be able to access such worksite locations. For instance, 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.

(Emphasis added.)

Here, the USCIS takes the position that an F1 student engaging in STEM OPT employment cannot work at the place of business or worksite of the employer's clients because ICE would not have authority to visit these sites. The USCIS STEM OPT page takes the position that “ICE must always have access to the student's worksite.” Accordingly, the F1 student may only be sent to another worksite while on STEM OPT if ICE had access to that worksite.

AILA suggests in its post that the USCIS's STEM OPT page guidance on the subject is overreaching with respect to the STEM OPT regulations. To this effect, AILA quoted from the March 11, 2016 STEM OPT final rule at 81 FR 13040, 13079 (Mar. 11, 2016):

There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through 'temp' agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience.

(Emphasis added.)

Here, we copied the entire passage, with the part focused in on by AILA emboldened for emphasis. AILA takes the position that, because the Federal Register notice placed the emphasis on ensuring that the F1 student engaged in STEM OPT employment is a bona fide employee of the employer signing the training plan and that the employer that signs the training plan is providing practical training experience, nothing should prohibit the F1 student on STEM OPT from being placed at the worksite of the employer's client or customer, provided that these two requirements are met. AILA reports that it has notified the DHS of the issue, and that it understands that the issue is currently under review.

The new STEM OPT rule altered the types of permissible employment arrangements for F1 STEM OPT students. While the rule extended the length of STEM OPT exchanges, it did, on the other hand, create new restrictions and requirements for STEM OPT employment. The example cited to by AILA is far from the first or only instance of confusion regarding what types of employment are permitted under the rules.

The text of the pertinent section of the USCIS STEM OPT page seems to leave some room for clarification from the USCIS. Note, for example, that the USCIS initially places the emphasis in assessing whether an F1 STEM OPT student can work at a site other than that of the employer on whether ICE has the authority to conduct inspections at that site. Subsequently, the notice categorically bars any training at the worksite or business of the employer's clients or customers on the basis that ICE could not conduct inspections at these sites. In an earlier but related point, USCIS placed the emphasis in precluding STEM OPT employment at any location other than at the employer's business or worksite on concern over the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements.. Between these points and AILA's cited passage of the STEM OPT Federal Register notice, one could see a scenario where USCIS modifies its position on the STEM OPT webpage regarding third-party worksites to make it slightly less restrictive. However, it is impossible to say without comment from USCIS.

STEM OPT employers and students should always refrain from speculation about the rules. They are best advised to exercise caution and to consult with an experienced immigration attorney in the case of any ambiguity regarding the rules for STEM OPT employment, especially regarding any sort of employment arrangement involving a worksite other than that of the employer. Airing on the side of caution and carefully following all applicable USCIS guidance, including the up-to-date text on the USCIS website, will provide the best prospects for avoiding inadvertent violations of the STEM OPT rules.

We will update the site with more information if and when the USCIS provides clarification on its interpretation of third-party worksite rules for STEM OPT. For more information about the new STEM OPT extension rules, please see our comprehensive articles on the regulations [see article] and on H1B cap-gap issues [see article]. You may learn more about F1 students and student and exchange visitor visas more generally in our website's category on the subject [see category].

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1. “Practice Alert: USCIS Changes Interpretation for Certain STEM OPT Students.” Published on AILA at Doc. No. 18051134. (May 11, 2018).