An April, 2018 update to the U.S. Citizenship and Immigration Services (USCIS) website has raised questions about third party placements of F-1 graduates under the STEM Optional Practical Training (OPT) program. The agency appears to place additional limits on STEM OPT employment by barring student workers from participating in placements at offsite locations.
The USCIS website states that the training of student workers “must take place on site at the employer’s place of business or worksite.” The agency’s justification for the change is that U.S. Immigration and Customs Enforcement (ICE) would lack the authority to visit third party workplaces to ensure program requirements are being fulfilled.
Under the 2016 STEM OPT extension rules, the employer must complete an ICE training plan and must supervise and train student workers for the program’s duration. But the regulations do not specify whether the supervision and training can be conducted when the employee works offsite.
In June 2018, USCIS placed emphasis once again on its concerns about offsite training, as the employer who signs the training plan would not be the person supervising the student worker. The change on the agency’s website appears to be at odds with STEM OPT rules and ICE policy.
The 2016 STEM OPT regulations imply that a student worker can undertake a third party placement provided that the individual has a bona fide employment relationship with the employer signing the training plan, and the same employer oversees the training. In addition, a placement agency may provide training opportunities as long as it is an E-Verify employer and it directly employs and trains the student.
According to ICE, STEM OPT workers are allowed to use placement agencies, provided all STEM OPT requirements are met. The placement agency is not permitted to sign the ICE training plan in an employer’s capacity, unless it is an E-Verify employer that supervises the training.
As of June 2018, USCIS has been approving third party STEM placements following a request for evidence in which the worker’s relationship with the bona fide employer is fully documented. F-1 graduates working on a STEM OPT extension and their respective employers should be aware of the USCIS change in interpretation of the third party placement rule. There is a risk that an employer’s lack of proper supervision could result in a potential status violation. USCIS has recently revised its unlawful presence policy effective on August 9, 2018.STEM OPT students risk being placed in removal proceedings over the unlawful presence violation.