USCIS Clarifies Guidance on STEM OPT Employment and Third-Party Worksites

On August 17, 2018, the United States Citizenship and Immigration Services (USCIS) updated the “Optional Practical Training Extension for STEM Students (STEM OPT)” page on its website. You may see the USCIS's news alert [PDF version] and the new STEM OPT page [PDF version] here on site.

The first change to the USCIS's STEM OPT page involves reporting material changes to a STEM OPT student's employment. The USCIS states that STEM OPT students and their employers must report any material changes to the STEM OPT employment to the student's Designated School Official (DOS) “at the earliest opportunity…” These changes are reported on a modified Form I-983, Training Plan for STEM OPT Students. If the student leaves his or her STEM OPT position or if the employer otherwise terminates the STEM OPT employment, the employer must report this fact to the student's DSO within five business days. STEM OPT students are required to report certain changes, “such as changes to their employer's name and address, to the DOS within 10 business days.”

The second change deals with STEM OPT employment at a site other than the employer's principal place of business. As we discussed in an earlier post, the previous version of the STEM OPT website stated that STEM OPT employment may not take place at the worksite of the employer's clients or customers [see article]. The American Immigration Lawyers Association (AILA) among other advocates argued that this guidance was overreaching with respect to the implementing regulations for STEM OPT.

In its revised guidance, the USCIS clarified its STEM OPT page to state unequivocally that STEM OPT students may in fact engage in employment at a site other than their employer's principal place of business provided that the STEM OPT requirements are otherwise met. Specifically, the employer must continue to meet its training obligations and the employer and STEM OPT student must maintain an employer-employee relationship. The new guidance states that the Department of Homeland Security (DHS) will review each case on a case-by-case basis for compliance with the applicable regulations.

The revisions that the USCIS made to its STEM OPT page are favorable to STEM OPT students and their employers. The guidance on the previous version of the STEM OPT page indicated that the USCIS was interpreting the regulations in a highly — if not unduly — restrictive way with regard to off-site employment. The new language is more in accord with the implementing regulations, stating that off-site employment for STEM OPT students is permissible provided that the STEM OPT requirements are otherwise met. When in doubt, STEM OPT employers and students may consult with an experienced immigration attorney in addition to the student's DSO for case-specific guidance. As a general matter, it is best to err on the side of caution in cases where there is ambiguity as to whether a specific employment situation is allowed under the complex STEM OPT regulations.

To learn about STEM OPT in general, please see our full article on the subject [see article]. We discuss student and exchange visitor visas in general in our growing Student Visas section on site [see category].