As explained below, we advise that a company may not have STEM OPT individuals at its work site unless it is a direct employer that is part of the e-Verify program. It may no longer utilize the services of STEM OPT individuals who are temporarily sent to a company to perform services, until there is clarification from Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS).

As you are likely aware, in May 2016 the Department of Homeland Security (DHS) finalized a rule permitting recent graduates with degrees in science, technology, engineering and mathematics (STEM) fields to apply for an additional 24 months of Optional Practical Training (OPT) beyond the initial 12-month OPT period. In order to qualify for the 24-month OPT extension, the student must be employed by an employer enrolled in e-Verify, and the employer must have a bona fide “employer-employee” relationship with the student. Furthermore, the employer and employee must execute a Training Plan (Form I-963) that clearly articulates the STEM OPT student’s learning objectives and affirms the employer’s commitment to helping the student achieve those objectives.  The STEM OPT rule also grants ICE the authority to perform site visits to employer locations that train STEM OPT students in order to ensure that the employer is meeting these requirements.

In its response to public comments on the 2016 STEM OPT rule, DHS cast doubt on whether consulting firm arrangements (in which a STEM OPT student is sent to a third-party site to perform services) could satisfy the STEM OPT rules, as consulting companies may not be able to provide their STEM OPT student employees the required in-person training at their clients’ third-party locations. More recently, in a post on its website, USCIS has advised that such arrangements are prohibited, stating that the training experience may not take place at the place of business or work site of the employer’s clients or customers because ICE would lack authority to visit such third-party sites in order to determine if such training is taking place.

We have asked USCIS and ICE to provide additional and more formal clarification as to whether all STEM OPT trainees are barred from being assigned to third-party sites during the course of their training program. For example, we believe that a third party that uses the services of STEM OPT individuals on contract with the direct employer should be able to authorize ICE to make inspections of its work sites. But neither USCIS nor ICE has as of yet offered any clarification.

USCIS Releases Details on FY2019 H-1B Cap Filings

USCIS has released the numbers of U.S. advanced degree and regular H-1B petitions it received during the fiscal year (FY) 2019 H-1B cap filing season. Of the approximately 190,000 petitions filed, roughly half were submitted toward the standard 65,000 quota, while half were submitted toward the additional 20,000 cap allowed for holders of U.S. advanced degrees.

USCIS ran two lotteries on April 11 to select which cases will be processed. The first lottery selected enough cases to meet the 20,000 advanced degree exemption, and the second lottery chose from the remaining 170,000 cases. (Overall, the odds for advanced degree cases were slightly higher because these filings had a second chance for selection if they were not chosen in the initial advanced degree lottery.)

Employers have already begun learning which of their cases were selected in the H-1B cap lottery. We anticipate the notification process to continue for the next few weeks. Cases that were not chosen in the lotteries will be rejected and returned with their filing fees.

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